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 REMARKS 
 
 ON THE 
 
 JUDGMENT OF THE PRIVY COUNCIL 
 
 IN 
 
 HEBBERT v. PURCHAS. 
 
 BY A BAEEISTEE. 
 
LONDOK : 
 
 SWIFT AND CO., REGENT PRESS, KING STREET, 
 
 REGENT STREET, W. 
 
THE 
 
 JUDGMENT OP THE PEIVY COUNCIL 
 
 IN THE CASE OP 
 
 HEBBERT v, PURCHAS. 
 
 In reviewing this very remarkable judgment, we have no 
 intention of plmiging into the intricacies of English eccle- 
 siastical history and antiquities, nor do we mean to compare 
 the canons laid down by it with the great principles of Catholic 
 doctrine or ritual. Both these are important points, often 
 treated of, but still probably requiring further elucidation. 
 Our aim is a humbler one, though perhaps one more imme- 
 diately practical : to try the judgment by the principles laid 
 down in other judgments of the same tribunal, and by the 
 ordinary everyday maxims of English law, and, indeed, of 
 common sense. 
 
 In doing this, we must not forget the great disadvantage 
 under which the tribunal laboured, of having to decide on an 
 undefended case. It is true that all the points under discussion 
 which came before it had been of necessity, since this was an 
 appeal, decided the other way in the court below ; and that an 
 elaborately reasoned judgment might in some degree take the 
 place of a defence. But, on the other hand, the line of argu- 
 ment taken by the prosecution, consisting mainly of an appeal 
 to an accumulation of ancient documents and antiquarian 
 memorials, would in any case require the hand of a skilful 
 counsel, to sift the vast confused mass of materials, and to 
 *' weigh rather than count " the witnesses ; and secondly, in this 
 particular case, the great previous ignorance of the individual 
 members of the tribunal on the subject-matter on which they 
 were to decide, rendered them peculiarly open to the arts of an 
 adroit advocate, and peculiarly liable to confusion "in the 
 mighty maze," for which their own knowledge supplied them 
 with no " plan." 
 
 Yet, as one of the principal objects of this article will be 
 to compare this judgment with that given by the Privy 
 Council in the case of Westerton v. Liddell, in 1857, it may 
 not be amiss to enter into some comparison of the composition 
 of the court in the two cases. 
 
 In Westerton v. Liddell the court consisted of Lord Cran- 
 worth (Lord Chancellor) ; Lord Wensleydale ; the Right Hon. 
 T. Pemberton Leigh, afterwards Lord Kingsdown ; Mr. Justice 
 Patteson ; Mr. Justice Maule ; and the Archbishop of Canterbury 
 (Dr. Sumner) and the Bishop of London (Dr.Tait), as assessors. 
 
4 Judgment of the Privy Council in the Case of 
 
 Compare this list, a list of five judges and two bishops — 
 two of the judges, Lords Wensleydale and Kingsdown, men of 
 the highest name among English judges, men who above all 
 others of modern days have left their mark on the principles 
 of our law ; all the five renowned for careful work and preci- 
 sion of thought above the average of judicial merit, all of them 
 studiously impartial, — with the present meagre tribunal : 
 
 Lord Hatherley (Lord Chancellor) ; Lord Chelmsford ; 
 the Archbishop of York ; the Bishop of London. 
 
 Then let it be remembered that Lord Hatherley signed, as 
 a member of the Ritual Commission, the first and second 
 reports of that commission, without dissent or comment, the 
 first saying : 
 
 We are of opinion that it is expedient to restrain in the public services 
 of the united Church of England and Ireland, all variations in resjyect of 
 vesture from that which has long been the established usage of the said 
 United Church. 
 
 And the second : 
 
 In submitting these recommendations to your Majesty, we desire to state 
 that we are anxious in no degree to abridge or curtail any of the rightful 
 liberties heretofore enjoyed by the clergy and laity of the United Church. 
 The National Church may well include men of varying shades of opinion 
 BO long as they can combine in a conscientious acceptance of her recognized 
 formularies and appointed rites. 
 
 But this large comprehension seems to us to render it most desirable that 
 in the celebration of the Church's rites there shall be introduced no novel 
 practices, which are welcome only to some, but are offensive to others. All 
 members of the Church being expected to join devoutly in one common 
 form and order of service, are, as we conceive, entitled to expect that no un- 
 accustomed form he used, giving to the service a new tendency and significance 
 by which the devotion of many is impeded. 
 
 And that he has, since this very judgment, endorsed these 
 reports ; saying, in moving the Lectionary Bill : 
 
 An objection had been made that the bill did not carry out the other re- 
 commendations of the commissioners. But those recommendations involved 
 BO many differences of opinion, the Government felt that they could not 
 undertake a more extensive measure than the present with any hope of 
 passing it through Parliament within a reasonable time. A recent decision 
 of the Privy Council loould tend ultimately in the direction desired by the 
 report of the commissioners. — Standard, March 14th, 1871. 
 
 Let it be remembered that the Archbishop of York refused 
 to sit on the Bitual Commission, because its composition was 
 too favourable to the Ritualists ! 
 
 And, lastly, that it would have been easy to constitute a 
 tribunal adequate to the importance of the question, and free 
 from every suspicion of partiaHty, by summoning the chiefs 
 of the Common Law Judges and the Lords Justices of Appeal, 
 either in addition to, or in substitution for, the members who 
 actually composed the tribunal. ^>« ^ 
 
Hebbert versus Purchas. 5 
 
 The judgment under consideration deals with four points : 
 The use of certain Vestments, the administration of the Mixed 
 Chalice, the administration of Wafer-bread, and the position of 
 the priest between the people and the holy table, with 
 his back to the people during the prayer of consecration — all 
 acts or matters relating to the celebration of the Holy 
 Eucharist. 
 
 The Vestments will come first. They are, as it is ad- 
 mitted on all sides, governed by the rubric as to " ornaments," 
 at the beginning of our present Prayer Book, subject to some 
 question as to the authority of the Canons of 1603 which will 
 be discussed hereafter. 
 
 It may be as well at once to say, for the benefit of non- 
 legal readers, that the way in which the rubrics and directions 
 in our present Prayer Book come to have the force of law, is 
 this: The last and existing Act of Uniformity (13 & 14 
 Car. II. c. 4), enacts by section 2 : 
 
 That all ministers .... shall be bo and to say and use the morning 
 prayer, evening prayer, celebration and administration of both the sacra- 
 ments, and all other the public and common prayer, 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 rites and ceremonies of the Church, according to the 
 use of the Church of England 
 
 And by section 17 : 
 
 That no form or order of common prayers, administration of sacraments, 
 rites or ceremonies, shall be openly used in any church, chapel, or other 
 public place of, or in any college or hall in either of the universities, the 
 colleges of Westminster, Winchester, or Eton, or any of them, other than 
 what is prescribed and appointed to be used in and by the said Book. 
 
 The Book of Common Prayer enforced by this Act is the 
 present one ; and, by virtue of the provisions of this Act, this 
 book, with all the rubrics and directions therein, becomes in- 
 corporated into the statute, and has all the force of an Act 
 of Parliament. 
 
 Now the rubric in question is as follows : 
 
 And here is to be noted, that such ornaments of the Church, and of the 
 ministers thereof, at all times of their ministration shall be retained, and 
 be in use, as were in this Church of England, by the authority of Parliament, 
 in the second year of the reign of King Edward the Sixth. 
 
 The ornaments of the minister during the celebration of 
 the Holy Communion are, according to the authority of the 
 first Prayer Book of Edward VI., these : 
 
 Upon the day and at the time appointed for the ministration 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 alb, 
 plain, with a vestment or cope, and where there be many priests or deacons, 
 
 B 2 
 
6 Judgment of the Privy Council in the Case of 
 
 then 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. 
 
 The word "vestment," it is allowed, means " chasuble." 
 
 The words in om- present rubric "by authority of Parlia- 
 ment " were decided by the Privy Council, in Westerton i\ 
 Liddell, to mean by the first Act of Uniformity in Edward VI.'s 
 reign establishing his first Prayer Book ; and that decision has 
 been accepted as law in the present case ; so that the rubric 
 may be read : " Such ornaments of the Church and of the 
 ministers thereof .... shall be retained, and be in use, as 
 were in this Church by authority of the first Prayer Book of 
 Edward VI., and the Act enforcing it." 
 
 Certainly the apparent meaning of these words is, as has 
 always been contended by the Eitualist party, that the vest- 
 ments as ordered for the minister by the first Prayer Book of 
 Edward VL, should be the vestments in use now: so the 
 Court of Arches in this case decided, and so the Privy Council 
 seemed to have already decided in Westerton v. Liddell. 
 
 The case of Westerton v. Liddell related to certain or- 
 naments and decorations in the churches of S. Paul and 
 S. Barnabas, Knightsbridge, which the Low Church party 
 were anxious to take away. Among them were the Cross and 
 the Credence table. In the lower courts both these articles 
 had been treated as ornaments of the Church within the meaning 
 of this rubric, the questions there discussed being, (1.) Whether 
 these supposed ornaments were in use or not under the first 
 Praj^er Book of Edward VL ; (2.) Whether they fell, as orna- 
 ments, under the rubric to the present Prayer Book, so as to be 
 lawful or not, according to their use or non-use in the time of 
 Edward VI.'s first Prayer Book. The Privy council held that 
 the Cross was not an " ornament" in the technical sense, but 
 an architectural decoration ; they, however, came to this con- 
 clusion mainly in consequence of a consideration of the rubrics as 
 to ornaments, and of the results which would follow if the Cross 
 were an " ornament," and as such bound by the rubric of the pre- 
 sent Prayer Book ; while as to the Credence table, they expressly 
 decided that it was an ornament, and a lawful one, under this 
 rubric. This being the case, their view of the relations of the 
 present rubric to the first Prayer Book of Edward VI. became a 
 necessary part of their judgment ; not a " dictum " in forensic 
 language, tliough the " dicta " even of judges of such eminence 
 could never be lightly regarded, but an integral portion of the 
 principles on which their judgment rested. 
 
 This is their language : 
 
Hehhert versus Purchas, 7 
 
 That the word «' ornaments " applies, and in this ruhric is confined 
 to those articles the use of which in the services and ministrations of the 
 Church is prescribed by the Prayer Book of Edward the Sixth. 
 
 Great stress has been laid by the opponents of the Eucha- 
 ristic vestments on the words ** retained and be in use ;" as if 
 this implied a double condition, that the ornaments in existence 
 at the time of the rubric should be, if they were also in use 
 under the first Prayer Book of Edward VI., retained and kept 
 in use. 
 
 But it is clear that these words " retained and " have 
 found their way into the present rubric by an error. In the 
 Prayer Book of Elizabeth, where it was intended to preserve 
 the services of the second Prayer Book of Edward VI., but 
 the dresses of the first Prayer Book, the rubric was : 
 
 And here is to be noted that the minister, at the time of the Communion, 
 and at all other times of his ministration, shall use such ornaments in the 
 church as were in nse ly authority of Parliament in the second year of the 
 reign of King Edward the Sixth, according to the Act of Parliament set in 
 the beginning of this book. 
 
 This Prayer Book was enforced by an Act of Uniformity ; 
 but in this Act it was intended to give the Queen a power of 
 altering these ornaments without coming to Parliament, and 
 therefore a clause in the Act enacted : 
 
 That such ornaments of the Church, and of the ministers thereof, shall 
 be retained and he in use, as was in this 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 the commissioners as appointed and authorised 
 under the Great Seal of England for causes ecclesiastical, or of the Metro- 
 politan of this realm. 
 
 Clearly the words " retained and " had no distinguishing 
 or special meaning here. James I.'s Prayer Book has the 
 same rubric as Elizabeth's. 
 
 Now the prosecution in the present case rely on these 
 words, " retained and ;" and they say that the Queen, under 
 the power given her by this Act, altered the Ornaments after 
 this Act, and that therefore these Ornaments were not in ex- 
 istence at the time of our present rubric, and are excluded by 
 force of the words " retained and." But here again we have 
 a direct decision on this point in Westerton v. Liddell. 
 
 It will be observed that this rubric does not adopt precisely the language 
 of the statute, but expresses the same thing in other ivords. 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 orna- 
 ments 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 
 
8 Judgment of the Privy Council in the Case of 
 
 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. 
 
 This passage would seem almost prophetically framed 
 with a view to the present case. Not only so, but in Martin 
 
 V. Mackonochie the then Privy Council expresslj^ adhered to 
 the ruling in Westerton v. Liddell. Now the way in which 
 the Privy Council attempt to evade these authorities in our 
 present case is as follows : — 
 
 In Liddell v. Westerton the question which their Lordships had to decide 
 was, whether the Rubric which excluded all use of crosses in the service, 
 affected crosses not used in the service but employed for decoration of the 
 building only, and they determined that these were unaffected by the 
 rubric. 
 
 They decided that the rubric in question referred to the Act passed in 2 
 and 3 Edward VI. adopting the first Prayer-Book, and not to any canons or 
 injunctions having the authority of Parliament, but adopted at an earlier 
 period. Their Lordships feel quite free to adopt both the positive and the 
 negative conclusions thus arrived at. In construing the expressions made 
 use of in that judgment, it should be borne in mind that this question of 
 the vestments was not before the Court. 
 
 In Martin v. Mackonochie the Committee stated anew the substance of 
 the judgment in Liddell v. Westerton upon this point, but did not propose 
 to take up any new ground. 
 
 This would seem as if the question of the Cross was the 
 only one before the Privy Council in Westerton v, Liddell, 
 whereas that of the Credence Table was also before them, and 
 was for this purpose more important than that of the Cross ; 
 and that the question as to the present rubric was only 
 whether it let in canons and injunctions previous to the first 
 Prayer-Book of Edward VI. ; whereas the decision really was, 
 that, in construing the present rubric, the rubric of Edward 
 
 VI. alone, and no canons or injunctions, or other orders, 
 whether before or after the first Prayer Book of Edward VI., 
 were to be looked at. It will seem, too, as if in Martin v. 
 Mackonochie the tribunal had merely stated historically, with- 
 out approval or sanction, " the substance of the judgment " in 
 Westerton v. Liddell ; whereas in fact they not only state that 
 they "entirely concur" in "its conclusions," but they build 
 upon it, avowedly, a great part of their decision in the case 
 before them. (2 L. R., P. C, p. 390.) 
 
 In fact if logic and the " Laws of thought " are worth any- 
 thing, the judgment in Westerton v. Liddell completely settled 
 the question ; deciding, not indeed the actual particular case, 
 but reasoning from premisses to a general conclusion, em- 
 bracing Ornaments both of the Church and of the Minister. 
 
 Now let us see the line of positive argument which is to 
 the Privy Council so convincing, that for it they run counter 
 
Hehhert versus Purchas. 9 
 
 to all the previous decisions of their trihunal. Having cited 
 the clause in the Elizabethan Act of Uniformity, empowering 
 the Queen with the consent of the Commissioners or the 
 Metropolitan to take other order, they say : 
 
 The injunctions of Elizabeth appeared in the same year, 1559, and one 
 of them orders that " the churchwardens of every parish shall deliver unto 
 the visitors the inventories of vestments, copes, and other ornaments, plate, 
 books, and specially of grails, couchers, legends, processionals, hymnals, 
 manuals, portasses, and such like, appertaining to the church." [Cardwell 
 Doc. Ann. i. 228.) Commissioners began to carry out these injunctions in 
 the same year. 
 
 They seem to infer that these orders would amount to the 
 destruction of vestments and copes ; but the fact is that the 
 "Interpretations and further considerations " of these very 
 injunctions, drawn up by the Archbishop and Bishops, explain 
 them thus : 
 
 First. ' • That there be used only but one apparel ; as the cope in the 
 ministration of the Lord's S?/2>per and the surplice in all other ministrations." 
 (1 Cardwell Doc. Ann. p. 238.) 
 
 Then the Privy Council proceed to set out the Advertise- 
 ments, which appeared in the year 1564, as follows : 
 
 In the ministration of the Holy Communion now in cathedral and col- 
 legiate churches, the principal minister shall use a cope, with gospeller and 
 epistoler agreeably ; and at all other prayers to be said at the said Com- 
 munion Table to use no copes but surplices. 
 
 That every minister saying any public prayers or ministering the Sacra- 
 ments or other rites of the Church, f.hall wear a comely surplice with sleeves, 
 to be provided at the charge of the parish. 
 
 And they say : 
 
 These advertisements were very actively enforced within a few years of 
 their publication. 
 
 They assume that these Advertisements are negative as 
 well as positive : that in enjoining what they do they foi'bid 
 what they do not ; and they construe them therefore as forbid- 
 ding the Eucharistic vestments in parish churches. Some 
 attempt is made to deal with the reasoning in the judgment 
 of the Court of Arches that the Advertisements were not in- 
 tended to alter the law, but only to enforce a decent minimum 
 of the lawful ritual ; though no mention is made of the 
 authority of Collier and Lathbury, there cited, to show that the 
 Puritans, not the High Churchmen, were the party that ob- 
 jected to them. But no attempt is made to meet the argument 
 that when the Advertisements wish to negative, they use ex- 
 press words, " at all other prayers .... to use no copes but 
 surplices ;" and that here no express words of negation are 
 used. Perhaps this silence may be explained by the extra- 
 ordinary but nevertheless apparent fact that the Privy Council 
 
10 Judgment of the Privy Council in the Case of 
 
 thought it impossible to use a surplice with a cope, and that 
 therefore the ordering of the one is the forbidding of the 
 other. Thus indeed they say : 
 
 If the minister is ordered to wear a surplice at all times of his ministra- 
 tion, he cannot xoear an alb and tvinicle when assisting at the Holy Com- 
 munion ; if he is to celebrate the Holy Communion in a chasuble, he carinot 
 celebrate i7i a surplice. 
 
 Yet the rubric to the first Prayer-Book of Edward VI. 
 orders ** a white alb plain with a vestment or cope J' And the 
 rubric at the end of the Communion Service in the same 
 Prayer-Book says : 
 
 And though there be none to communicate with the priest, yet these 
 days (after the Liturgy ended) the priest shall put upon him a plain 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. 
 
 Thus showing two things: (1,) That alb and surplice are 
 practically identical ; (2.) that a cope may be and is to be 
 worn with a surplice. 
 
 Nor again have they dealt with the argument that when 
 the 82nd canon prescribed that the holy table should be 
 ** covered with a carpet of silk or other decent stuff," and Dr. 
 Lushington held that this canon, by not mentioning, excluded 
 more than one covering, or a covering that was more than 
 merely a carpet of silk or decent stuff, the Privy Council in 
 Westerton v, Liddell reversed this decision, saying : 
 
 Their Lordships are unable to adopt this construction. An order that a 
 table shall always be covered with a cloth surely does not imply that it shall 
 always be covered with the same cloth or with a cloth of the same colour or 
 texture. The object of this canon seems to be to secure a cloth of a suffi- 
 ciently handsome description, not to guard against too much splendour. 
 (Moore, p. 188.) 
 
 To return to the present judgment ; the next point taken 
 by the Court is, that after the Advertisements chasubles (or 
 vestments) were systematically destroyed. Be it so ; but 
 their own documents show that the cope was in general use. 
 They say : 
 
 But, as has been said, the contemporaneous evidence as to the abolition 
 of all vestments obnoxious to the Puritan party (other than the surplice, 
 hood, and tippet, and the square cap) is abundant. 
 
 Yet they in the next sentence say : 
 
 In a scarce book, called A Part of a Register, in which is a consi- 
 derable number of documents collected by those who objected to Church 
 Eitual, the complaint is uniformly against copes and surplices. 
 
 It is curious certainly that another passage from this very 
 book, not noticed by the Privy Council, was cited in the 
 
Hehbert versus Purchas, 11 
 
 Arches' judgment. This quotation shows the very general 
 use of the cope. 
 
 Doe not the people think a more grievous fault is committed if the 
 minister doe celebrate, etc., loithout a surplesse or a cope, than if the same 
 through his silence should suffer an hundred souls to perish, (p. 45.) 
 
 Besides this book, almost all their quotations speak of the 
 cope as in actual use. Sir J. Dodson, in the Arches Court, 
 in Westerton v. Liddell, quoted Bishop Sandys as saying, 
 ** Only the Popish vestments remain in our Church : I mean 
 the copes.^^ (Moore, p. 116.) Now it will be remembered 
 that Edward VI.'s Kubrics order a "vestment" {i.e. a cha- 
 suble) or a " cope." Either therefore might be used ; it is 
 possilDle that the cope might have become the common dress 
 instead of the chasuble ; but that would not show the desue- 
 tude or repeal of the rubric. On the contrary, it would show 
 that the rubric was in full force. 
 
 As to the disuse of vestments after 1662 (the date of our 
 present Prayer Book), they quote Bishop Cosin as enforcing 
 the surplice, without a word as to enforcing the Eucharistic 
 vestments ; and they lay stress on this act as a contem- 
 poraneous exposition of the rubric by one of its framers ; but 
 they have omitted to notice that Cosin, in the second and third 
 series of his Notes on the Prayer Book, distinctly laid down 
 that the Eucharistic vestments ordered in the rubric to the 
 Elizabethan Prayer Book were still (in Charles I.'s time, after 
 Advertisements, Canons, and everything) retained. 
 
 These passages were not quoted in the Arches' judgment 
 in this case, but they were quoted by Sir J. Dodson in the 
 case of Westerton v. Liddell. 
 
 In the Second Series (written about 1638) the words 
 are: — 
 
 And yet this latter book {i.e., the second Prayer Book of Edward VI.), 
 and Act of Parliament thereto annexed, did not condemn either the orna- 
 ments or anything beside that was appointed in the former book {i.e., the 
 first Prayer-Book), but acknowledged it all to have been a very godly 
 order agreeable to the Word of God and the primitive Church. Whereupon, 
 by authority of Parliament in the first year of Queen Elizabeth, albeit it 
 was thought most meet to follow and continue the order of Divine Service 
 in psalms, lessons, hymns, and prayers (a few of them only varied,) which 
 was set forth in the fifth year of King Edward (the second Prayer-Book), 
 yet for the ornaments of the church, and of the ministers thereof, the order 
 appointed in the second year of his reign (the first Prayer-Book) was retained 
 and the same are we bound still to observe. 
 
 In the Third Series, said to have been written about 1640, 
 the ruling is the same. (Moore, pp. 126, 127.) We shall 
 have occasion again to refer to the Privy Council's way of 
 dealing with Cosin. 
 
12 Judgment of the Privy Council in the Case of 
 
 The actual question of the legality of the Advertisements 
 will not be here treated of. But we may observe that if the 
 Advertisements were lawful, as the Privy Council say, on the 
 principle that the Archbishop put them out and the Queen 
 assented to their being enforced, what is to be said as to the In- 
 junctions of EHzabeth, with their "Interpretations" enforcing 
 the cope — Injunctions issued by the Queen, Interpretations 
 by the Archbishop and not objected to by the Queen ? If the 
 Advertisements are lawful, on the principle that we must believe 
 ** omnia rite esse acta," why was so little attention paid to the 
 Injunctions of Edward VI. by the Privy Council in Martin v, 
 Mackonochie ? The reader will observe that many things are 
 necessary in order to make the Vestments of the first Prayer 
 Book of Edward VI. not lauful now, (1.) That the words 
 ** retained and " shall mean that these Vestments would not be 
 lawful unless they were in legal existence at the time of the 
 framing of the present rubric; (2.) that they were not in legal ex- 
 istence. Not to be in legal existence, they must either [a) have 
 been repealed by the Advertisements, or (5) affected in some 
 way by the Canons. To have been repealed by the Advertise- 
 ments, the Advertisements must have had legal power to 
 repeal, and they must have bee7i intended to repeal, the law. 
 
 There are, however, two points remaining: the question 
 of the force of the Canons of 1603, and the question of disuse. 
 The Canons of 1603 are very much to the same effect as the 
 Advertisements, to which indeed they refer. They enforce 
 the cope in cathedrals, and the sui-plice in parish churches. 
 They use no words of negation or prohibition. As to them, 
 the Privy Council say that there are three views of the effect 
 of the present rubric on the Canons : (1.) That the rubric 
 repealed the Canons; (2.) that the rubric and the Canons 
 set up two standards of ritual, an ornate and a simpler one, 
 both in force at the same time ; (3.) that they are to be con- 
 strued together as making one law. As to (1.) they say that 
 it is the opinion of Dr. Lushington and of Sir John Dodson in 
 Westerton v. Liddell, but that it is a wholly modern one, and 
 they reject it. Now it certainly was the opinion of Dr. 
 Lushington ; he speaks of the argument about it as an " irre- 
 sistible argument ;" hut it zvas also the opinion of the Privy 
 Council in the same case — as we have already shown, but 
 they have neglected to show ; it was also the opinion of Dr. 
 Burn, the standard writer on ecclesiastical law in the last 
 century ; of Bishop Gibson, in his Codex Juris Ecclesiastici 
 Anrjlicani, the great work on English ecclesiastical law, first 
 published about 1740 — not such very modern authority ; — of 
 
Hehbert versus Piirchas. 13 
 
 Prideaux, in his Churchwarden'' s Guide; of Dr. Stephens 
 himself, the counsel retained for the prosecution, in his edition 
 of the Book of Common Prayer ; of the late Bishop of Exeter, 
 sitting as Judge on the Incumbent of Helston ; and of a 
 consensus of eminent lawyers. It is also the view taken by 
 the Dean of the Arches in his judgment — not that ascribed to 
 him as view No. 2, that the Canons and rubric together enacted 
 two different standards, both in force, a view impossible to be 
 held, we should have said, by any legal mind — for he has ex- 
 pressly said of the Canons that they were merely an attempt 
 to procure a decent ritual, an enforcing of a necessary 
 minimum because the legal maximum could not be obtained. 
 
 What, then, are the arguments on which the Privy Council 
 build their conclusion (No. 3.). That the present Act of 
 Uniformity, by section 24, 
 
 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 
 Sacraments .... shall stand in full force and strength, to all intents and 
 purposes whatever, for the establishing and confirming the said hooky The 
 laws were to remain ; but they were to bear on the new Book of Common 
 Prayer, and not upon any former one. 
 
 Of course the laws were to remain ; but they were to be 
 laws for establishing the Prayer Booh, not for altering it. 
 The section relates to the punitory and enforcing clauses in 
 the Elizabethan Act of Uniformity, etc., giving power to indict 
 offenders criminally, and enabling bishops and ecclesiastical 
 judges to proceed for the purpose of enforcing uniformity in 
 places otherwise exempt from their ordinary jurisdiction. 
 
 The next argument is that : 
 
 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 all, those in force up 
 to that moment, were excluded from the saving power of this 24th clause. 
 
 Why, one would suppose, and not only in this passage, that 
 their lordships considered the Canons as equivalent to Acts of 
 Parliament, universally binding, and able indeed to repeal pre- 
 vious statutes. Their lordships, one would imagine, must have 
 forgotten the general principles of constitutional law, laid down 
 in James I.'s reign, but a few years after these very Canons were 
 enacted, and held ever since (12 Co. 72), that Canons, even 
 with the royal assent, have no effect as against the common 
 law, statute law, or any custom of the realm. " Prayer Book 
 rest upon the Canons," a Prayer Book that was to be enforced 
 against laity as well as clergy, and infringements of which 
 
14 Judgment of the Privy Council in the Case of 
 
 might be punished by fine and imprisonment in temporal 
 courts ! Why, Lord Hardwicke and the Queen's Bench 
 decided in George II.'s time that these Canons had no efiect 
 at all upon the laity, and could not inflict a fine of £10 upon 
 them for violating the law about marriages ! (Middleton v. 
 Croft, Strh. 1056.) Prayer Book to be construed in accord- 
 ance with the Canons in matters of ceremonial ! Why, in 
 Martin v. Mackonochie the Privy Council expressly said : 
 
 If the use of lighted candles in the manner complained of he a ceremony , 
 or ceremonial act, it might be sufficient to say that it is not, nor is any 
 ceremony in which it forms a part among those retained in the Prayer Book, 
 and it must therefore be included among those that are abolished ; for the 
 Prayer Book in the Preface, divides all ceremonies into these two classes : 
 those which are retained are specified, whereas none are abolished spe- 
 cifically or by name ; but it is assumed that all are abolished ivhich are not 
 expressly retained.— 2 L. J?., P. C. p. 388. 
 
 Then there remains the argument of disuse. Their lord- 
 ships do indeed say that desuetude cannot repeal a contrary 
 enactment ; it had been said often before, notably by Dr. 
 Lushington in Westertont;. Liddell (Moore, pp. 45, 79) ; but 
 still they attach the greatest weight to " contemporaneous and 
 continuous usage " in construing the law. They do not even 
 notice the sixteen closely printed pages of argument upon this 
 point in the Arches' judgment of Martin v. Mackonochie, 
 (2 L. R., A. &E. pp. 174-190,) referred to and supplemented 
 in the judgment of the same court in this case (3 L. R., 
 A. and E. pp. 90-92) ; nor do they notice the incontrovertible 
 instances (eight at least are given) of disuse of things 
 plainly ordered by the ecclesiastical law ; nor the fact that 
 disuse would of all things have told most strongly against 
 the Credence-table and Cross, both allowed by the Privy 
 Council ; nor that the same argument of disuse tells con- 
 clusively against their own final ruling, " that the cope is to be 
 worn in ministering the Holy Commimion on high feast days 
 in cathedrals and collegiate churches, and the surplice in all 
 other ministrations ;" (for as matter of fact the cope is not 
 now, and has not been for very many years, worn in any cathedral 
 or collegiate church ;) nor the fact that the surplice was so 
 generally disused in preaching, that an order to the clergy of 
 London to substitute it for the black gown, in 1842, raised a 
 storm and a commotion almost unexampled in post-Reformation 
 history. 
 
 We subjoin a list of legal authorities on the question 
 of Vestments before the hearing of this case. 
 
 In favour of the legality of the Eucharistic vestments : 
 
 Writers. — Bishop Gibson's Codex (two editions) ; Mr. 
 
Hebbert versus Purchas. 15 
 
 Prideaux and his editors ; Dr. Burn and his various editors ; 
 Dr. Stephens. 
 
 Courts. — The Privy Council, in Westerton v. Liddell, sup- 
 ported by the Privy Council in Martin v, Mackonochie ; the 
 late Bishop of Exeter, in the Helston case. 
 
 Judges and eminent laivyers icho have given opinioiis 
 on this subject when at the bar. — Lord Chelmsford ; the Lord 
 Chief Justice of the Common Pleas ; the Lord Chief Baron ; 
 the Lord Justice James ; the Dean of the Arches ; Mr. Justice 
 Hannen ; the Solicitor General ; Dr. Deane, Q.C. ; Mr. 
 Prideaux, Q.C. 
 
 Against : 
 
 Writers. — None. 
 
 Courts. — ^None. 
 
 Laivyers. — Lord Cairns ; Lord Justice Mellish ; Sir 
 Roundell Palmer. 
 
 On the Mixed Chalice there is less to be said from the 
 point of view of this Article. The Privy Council do not notice 
 the authority of Cosin, quoted by the Dean of the Arches, 
 just as they do not notice the same authority, similarly 
 quoted, as to the Wafer-bread, nor the quotations from him by 
 Sir J. Dodson in Westerton v. Liddell, as to the Vestments ; 
 though they do quote him when they think him in their favour, 
 especially as to '' standing before the table." 
 
 But the real objection to the judgment on this point is, 
 
 that it ultimately decides the matter, not as one of pure law, 
 
 but as one of relative importance. It says : 
 
 Their lordships gladly leave these niceties of examination to observe 
 that they doubt whether this part of the article is of much importance. . . . 
 The private mingling of the wine is not likely to find favour with any. 
 
 That is, We do not think much outcry will be raised 
 against our ruling in this matter, so we will do it — a slip, 
 inadvertently disclosing the real principle of the judgment, to 
 condemn as many "Eitualistic practices" as they can — with 
 comparative safety. 
 
 The question as to the Wafer-bread is more complicated ; 
 but also far graver. The decision is that Wafer-bread is unlaw- 
 ful, and that the best wheat bread, such as is usual to be eaten, 
 is alone lawful. 
 
 Now the history of the law on this subject is this. 
 
 The first Prayer Book of Edward VI. provided as follows : 
 
 For avoiding of all matters and occasion of dissension, it is meet that 
 the bread prepared for the Communion be made through all this realm 
 after one sort and fashion ; that is to say, unleavened and round, as it was 
 afore, but without all manner of print, and something more larger and 
 thicker than it was, so that it may be aptly divided in divers pieces ; and 
 
16 Judgment of the Privy Council in the Case of 
 
 every one shall be divided in two pieces at the least, or more, by the 
 discretion of the minister, and so distributed. And men must not think 
 less to be received in part than in the whole, but in each of them the whole 
 Body of our Saviour Jesus Christ. 
 
 The second Prayer Book of Edward VI., being the same 
 
 as that of Elizabeth, provided thus : 
 
 And to take away the 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 at the table with other meats, but the best and purest wheat 
 bread that conveniently may be gotten. 
 
 The rubric to the present Prayer Book is as follows : 
 
 And to take away all occasion of dissension and superstition which any 
 person hath or might have concerning the bread and wine, it shall suffice 
 that the bread be such as is usual to be eaten ; but the best and purest wheat 
 bread that conveniently may be gotten. 
 
 The Injunctions of Queen Elizabeth, published in 1559, 
 prescribe a special form of Wafer-bread as the only one to be 
 used: 
 
 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 the holy mysteries, being the sacraments of the 
 Body and Blood of our Saviour Jesus Christ, that the same sacramental 
 bread be made and formed plain, without any figure thereupon, of the same 
 fineness and fashion round, though somewhat bigger in compass and thick- 
 ness, as the usual bread and wafer, heretofore named singing-cakes, which 
 served for the use of the private masse. 
 
 These Injunctions, if they ever had authority, ought, ac- 
 cording to the view of the Privy Council as to the Canons, (in 
 the matter of Vestments,) to be construed in agreement with 
 the rubric to the present book ; but, conceding that the In- 
 junctions were repealed by the rubric, you have the strongest 
 *' contemporanea expositio" from them, from the letter of 
 Archbishop Parker, cited by the Judge of the Arches, and not 
 noticed by the Privy Council, and from the actual usage, as 
 evidenced by Cosin (see below), and by Hooker (Book iv. 
 2)assim), that Wafer-bread was lawful in the time of 
 Elizabeth. Now in what does her Kubric differ effectually 
 from the present one ? One has " to take away the supersti- 
 tion .... it shall suffice," the other, **to take away all 
 occasion of dissension and superstition .... it shall suffice." 
 It is on this difference that the Privy Council seem to rely in 
 one place, for they say, '* the present rubric .... introduces 
 words which have been prominent in the argument in this 
 case." But eventually they deal with the matter in the fol- 
 lowing way. They say that the first Prayer Book of 
 Edward VI. provided one rule ; the Elizabethan Prayer Book 
 a second rule ; and the Elizabethan Injunction a third rule, 
 ^' at variance with the EUzahethan rubric ;" that all these 
 
Hehbert versus Piirchas, 17 
 
 rules were intended to, and did in fact, produce uniformity, 
 and not variety ; and that, therefore, the second of them — 
 that of the Elizabethan Prayer Book — produced uniformity, 
 that is, uniformity in having common bread and no wafers, 
 which uniformity, therefore, would also be the rule under the 
 present rubric. 
 
 They sum up thus : 
 
 So there are three distinct orders : first, for wafer-bread, unleavened as 
 before, but larger and without print ; then for common bread usual at the 
 table ; then for a new kind of bread, thicker than the wafer and without 
 symbolical figures ; and the first and last are in their form universal and 
 absolute ; and the second also had brought about a general usage, and not a 
 diversity. There was, no doubt, a great division of opinion upon this question ; 
 and this makes it.ail the more remarkable, .that none of the three orders takes 
 the natural course of leaving the matter free. Each seems to have aimed at 
 uniformity, but each in a different practice. 
 
 Now, in order to hold this, they are obliged to hold that 
 the Injunctions of Elizabeth " superseded " the rubric, re- 
 pealing its positive provisions, and not merely enforcing where 
 it had left a discretion : and they are severe on the Judge of 
 the Arches for calling the Injunctions a " contemporanea 
 expositio " of the rubric. And then they never even mention 
 that Parker, Elizabeth's first archbishop, and one of the 
 framers of the Injunctions, wrote a letter to Sir W. Cecil, in 
 1570, — set out at length in the Arches' judgment, and too 
 long for this place, — in which he lays down that the Injunc- 
 tions do not, and were not intended to, supersede the statute, 
 but to operate concurrently ivith it. 
 
 This letter is apparently the main ground of the Arches* 
 decision, yet the Privy Council do not notice it. But, inde- 
 pendently of Parker's letter, it is clear that the Injunctions did 
 not mean to repeal the previous rubric; they say, "Where 
 also it was .... used to have the sacramental bread of 
 common fine bread, it is ordered .... that the same sacra- 
 mental bread be made," etc. They do not order a new kind 
 of bread, but that the same should be shaped in a particular 
 way. 
 
 Then the court come to deal with the words " it shall 
 suffice ;" and they say : 
 
 Their lordships are disposed to construe this phrase in each case accord- 
 ing to the context. Here the expression is, "to do away all occasion of dis- 
 sension and superstition .... it shall suffice." If these words left the 
 whole matter open, and only provided that the usual bread should be suffi- 
 cient where it happened to be used, it is difficult to see how either dissen- 
 sion or superstition would be taken away : not dissension, for there would 
 be a licence that had not existed since the Reformation ; not superstition, for 
 the old wafer with its " print," its " figures," which the first book of Edward 
 
18 Judgment of the Privy Council in the Case of 
 
 and the injunctions desired might be eichided, might now he used if this 
 rubric were the only restraint. Their lordships are therefore inclined to 
 think on this ground alone, that the rubric contains a positive direction to 
 employ at the Holy Communion the usual bread. 
 
 Why, omitting the word ** dissension," — which is probahly 
 
 an accidental importation from the first Prayer Book of 
 
 Edward VI., — all these words about superstition, etc., 
 
 occurred in the Elizabethan rubric ; and how does Parker in 
 
 his letter, how did the universal practice, construe them ? 
 
 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 suffice 
 that the bread be such as is usually to be eaten at the table with other 
 meats," etc. " It shall suffice,'''' I expound, where either there wanteth such 
 fine usual bread, or superstition be feared in the wafer-bread, they may have 
 the Communion in fine usual bread; which is rather a toleration in these two 
 necessities, than is in plain ordering as is in the Injunction. 
 
 And Cosin records : 
 
 This liberty of using Wafer-bread was continued in divers churches of the 
 kingdom till the 17th of King Charles.— 3 L. R., A. and E., p. 105. 
 
 Finally, the court revert to their old argument of disuse ; 
 while they take no notice of the ruling in Westerton v. Liddell 
 (cited to them by the Arches), as to the covering for the holy 
 table (See p. 208 supra), which shows that an ordering of one 
 thing which is the minimum of sufficiency, does not thereby 
 prevent the addition of something else which may be better. 
 
 Lastly, as to the charge of standing between the people 
 and the holy table with the back to the people, so that the 
 people could not see the bread broken. 
 
 Now we are not going into any of the antiquarian or other 
 discussions as to standing at the north side of the holy table 
 during the Communion Service. We will admit, for this pur- 
 pose, that the law is that the priest shall stand at the north 
 end, with his side to the people during the service, till he 
 come to the prayer of Consecration. The simple question 
 before us is. Whether the Privy Council have not, in deciding 
 as they have now done, that the priest must not stand during 
 the prayer of consecration between the people and the holy 
 table with his back to the people, directly reversed their own 
 decision, given not three years ago, in the case of Martin v, 
 Mackonochie ? 
 
 Mr. Mackonochie was charged with violating the rubric 
 by kneeling instead of standing during a part of the prayer of 
 consecration. It was contended on his behalf that there were 
 no specific directions on the point ; but their lordships held 
 otherwise. They said : 
 
 The rubric before the prayer of consecration then follows, and is in 
 these words : " When the priest, standing before the table, hath so ordered 
 
Hehhert versus Purchas. 19 
 
 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 this 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 ivhole 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.— 2 L. i?., P. C. p. 382. 
 
 This construction, it may be remembered, lias since been 
 twice enforced, with the severest penalties, against Mr. 
 Mackonochie. On this the Arches Court, holding that 
 "between the people and the table with the back to the 
 people " was *' before the table," dismissed the charge against 
 Mr. Purchas, on the ground that by the Privy Council con- 
 struction of the rubric the priest was bound to " stand before 
 the table " during the prayer of consecration. 
 
 How do the Privy Council deal with this in the present 
 case ? They say : 
 
 This passage refers to posture or attitude from beginning to end, and 
 not to position with reference to the sides of the table. And it could not be 
 construed to justify Mr. Purchas in standing with his back to the people, 
 unless a material addition were made to it. The learned Judge reads it as if 
 it ran, " They think that the words standing before the table apply to the 
 whole sentence, and that before the table means between the table and the 
 people on the west side.^^ But these last words are mere assumption. The 
 question of position was not before their lordships ; if it had been, no doubt 
 the passage ivould have been conceived differently, and the question of posi- 
 tion expressly settled. 
 
 There are, as it were, two arguments here ; one, that the 
 ruling in the former judgment not being actually on this point, 
 though the reasoning, the necessary logical course of argu- 
 ment, must be the same, the former judgment is of no force — 
 a conclusion that would cut at the root of more than half our 
 law, which is founded on precedent; and the other, not an 
 argument, but a suggestion, that " standing before the table" 
 does not necessarily mean " standing between the table and 
 the people." 
 
 But they evidently do not rely upon this last construc- 
 tion : for they also say : 
 
 Their Lordships incline to think 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 
 
20 Judgment of the Privy Coiuicll, etc. 
 
 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 tlie main object 
 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 
 peoijle," and are not intended to limit to any side. 
 
 That is, the words *' standmg before the table" set the 
 minister free for the moment, and for the moment only, of 
 ordering the elements, to stand where he likes, and do not 
 apply to his pfositlon during the subsequent prayer of conse- 
 cration ; though the same words compel him to stand and 
 not kneel during the ivJiole of this very same prayer I 
 
 To smn up then; for their judgment in this, the Purchas 
 case, the Privy Council have directly contradicted the previous 
 judgments of the same tribunal in Westerton v. Liddell and 
 Martin v. Mackonochie. They have given a force to the 
 Canons repudiated by every court of justice in England. They 
 have stated that construction of the Ornaments rubric in our 
 Prayer Book to be ** a modern one," which has been held by 
 every court of justice, and by every legal authority (with the 
 one exception of the opinion of Lord Cairns, Lord Justice 
 Mellish, and Sir R. Palmer), from its very enactment down 
 to the present day. They have relied on the argument from 
 usage and desuetude, when the very foundation of that argu- 
 ment has been sapped by an historical analysis, unnoticed by 
 them though necessarily before their eyes, when the argument 
 has been rejected by their own court in a former case, and 
 when it would, if true, destroy as well their own conclusions. 
 They have quoted authorities when in their favour, and have 
 not even recorded the same authorities when they were against 
 them. When we find phenomena such as these occurring in 
 a judgment di-awn up by men of ability and of great position, 
 we regret that it should seem impossible to explain them upon 
 any other hypothesis than that of a predetermined and inera- 
 dicable intention in the minds of the majority of the court to 
 condemn at all hazards the " novel practices" of the so-called 
 Ilitualists. W G F P 
 
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