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 JUDGMENT 
 
 DELIVERED BY 
 
 THE RIGHT HON.SIE EOBEET PHEIIMORE, D.C.L, 
 
 OFFICIAL PRINCIPAL OF THE COURT OF ARCHES, 
 
 IN THE CASES OP 
 
 MARTIN V MACKONOCHIE 
 
 AND 
 
 FLAMANK v SIMPSON. 
 
 EDITED BY 
 
 WALTER 6. F. PHILLIMORE, B.A., 
 
 OF THE MIDDLE TEMPLE, 
 FELLOW OF ALL SOULS COLLEGE, AND VINERIAN SCHOLAE, OXI'OED. 
 
 LONDON: 
 BUTTERWORTHS, 7, FLEET STREET, 
 
 1868.
 
 LONDON: 
 
 Pkinted by Eyee and Spottiswoode, 
 Hee Majesty's Peintees.
 
 The arguments in these cases, which occupied 
 sixteen days for the hearing on the merits, included 
 a wide range of matters connected with ecclesias- 
 tical jurisprudence. The Judgement will he found 
 to extend to a discussion of the general legal and 
 ecclesiastical principles of the Eeformation in the 
 16th century, and of the present position of our 
 Church. , 
 
 It contains also an historical and legal analysis 
 of the value of the argument drawn hy the Coun- 
 sel for the Promoters from the practical disuse of 
 particular ceremonies. 
 
 The following points underwent judicial investi- 
 gation to a greater extent than is to he found in 
 any former decided cases; namely, the authority 
 of the Crown per se, and under the Supremacy 
 and the Proclamation Acts of Henry VIII., to 
 issue Injunctions ; the legal meaning of the term 
 " Ceremony," as used in the Statutes of Uniformity ; 
 the ruhric as to the discretion of the Ordinary ; and 
 the principles upon which the Court should proceed 
 in the construction of ruhrics, and the existence 
 of a common unwritten law of the Church, side by 
 side with the written statutes, rubrics, canons, 
 and constitutions. 
 
 The Counsel in the case of — 
 
 Martin v. Mackonochie, were. 
 
 For the Promoter, For the Defendant, 
 
 Dr. A. J. Stephens, Q.C., Mr. W. H. James, Q.C., 
 
 Mr. Coleridge, Q.C., Mr. Prideaux, Q.C., 
 
 Dr. Swabey, and Dr. Tristram, and 
 
 Mr. Droop. Mr. A. Charles,
 
 In the case of — 
 
 Plamank v. Simpson, 
 
 For the Promoter^ For the Defendant, 
 
 Dr. Stephens, Q.C., Dr. Deane, Q.C., 
 
 Dr. Swabey, and Dr. Tristram, 
 
 Mr. Droop. Mr. (now Mr. Justice) Hannen, and 
 
 Mr. A. Charles. 
 
 Before these cases came on for hearing on the 
 merits, there had been a previous argument in each 
 case as to the form of the articles ;* and in the case 
 of Martin v. Mackonochie as to the power of the 
 Judge to delegate his jurisdiction to surrogates, 
 which will be seen to be referred to in the 
 Judgement. 
 
 ^* 1 Law Eeports, Adm. & Eccl. p. 276 : 1 Privy Council Appeals, p. 463. 
 
 \. ■/
 
 Judgment delirered by the Eight Hon. Sir Egbert 
 Phillimore, D.G.L.5 Official Principal of the 
 Court of Arches, on the 28th day of March 1868, 
 in the Cases of— the Office of the Judge pro- 
 moted by — ^Martin v. Mackonochie and Plamank 
 V, Simpson. 
 
 Preliminary Observations. 
 
 This case of Martin v. Mackonochie was brought before 
 my predecessor in this chair, by Letters of Request from the 
 Bishop of London, under the provisions of the 3rd and 4th 
 Victoria, c. 86. That Statute, passed in the year 1840, 
 enables any bishop within the Province'of Canterbury either 
 to try the case of a clerk for a criminal offence before himself 
 with certain assessors, or to send it to the Court of the Arch- 
 bishop for trial in the first instance. Since the passing of 
 this Statute, bishops have very generally availed themselves 
 of the latter provision, and this Court has now before it 
 several cases so sent from several suffragan dioceses of the 
 Province of Canterbury. 
 
 Under the old law, when these cases were triable in the 
 Consistorial Court of each bishop, if they were sent by 
 Letters of Request to the Court of Arches, these^ letters 
 contained an averment that the lack of counsel, and difficulty 
 of obtaining proper legal assistance, rendered it expedient, 
 for the ends of justice, that the case should be tried in the 
 first instance in the Court of Appeal, that is, in this Court. 
 It is not to be wondered at, therefore, that this is, I believe, 
 the only case but one which has been sent by Letters of 
 Request from the great Diocese of London, amply furnished 
 as it is with all means and appliances requisite for the ad- 
 ministration of justice, to the Court of Appeal ; and I much 
 regret that I am deprived of the great assistance which I 
 should have derived from the judgement of the Bishop of 
 London upon the important matters now before me, if the 
 case had been brought to this Court in the regular course of 
 appeal. 
 
 The Letters of Request were accepted by Dr. Lushington, 
 my learned predecessor in this chair, and in an early stage
 
 of these proceedings, before evidence had been taken, or 
 argument heard upon the merits of the case, I was counsel 
 for the accused clerk, and took objections to the manner in 
 which the offence was charged in the criminal articles. 
 When the Archbishop of Canterbury was pleased to confer 
 upon me the Judgeship of his Grace's Court, I proposed to 
 hear the case, with the assistance of two learned persons well 
 skilled in ecclesiastical law, the Vicar- General of the Arch- 
 bishop, and the Chancellor of Rochester (to whom I take 
 this opportunity of publicly expressing my thanks), but this 
 arrangement was demurred to on behalf of the promoter of 
 the Bishop of London's office, that is the accuser ; and I 
 then appointed, as my patent gave me full power to do, 
 those two learned persons to be my surrogates for the hear- 
 ing of this cause. They held one Court, and in consequence 
 of arguments addressed to them touching the validity of 
 their appointment, they adjourned the hearing of the cause 
 until an opportunity had been afforded for an application to 
 the Temporal Court for a prohibition. The counsel for 
 Mr. Mackonochie applied to the Court of Queen's Bench for 
 a rule nisi to show cause why the prohibition should not go 
 to these surrogates, upon the ground that I had exceeded my 
 power in appointing them. 
 
 The promoter or accuser did not appear to show cause 
 against the prohibition, and the rule, upon an ex parte state- 
 ment, was perhaps almost necessarily made absolute. 
 
 But I think if the rule had been opposed, and the 
 powers given by my patent, and also the fact of the 
 invariable usage of this Court, as proved by its earliest 
 records, to appoint surrogates, been duly brought to the 
 attention of the Court of Queen's Bench, it would have re- 
 fused the rule. I mention this circumstance, in order to 
 prevent any inconvenience which might ensue from it being 
 supposed that this Court had no power to appoint surrogates. 
 After these proceedings in the Court of Queen's Bench, the 
 surrogates whom I had appointed, by a formal instrument 
 entered upon the records of this Court, resigned the powers 
 which I had conferred upon them. 
 
 I then proceeded to hear this cause, and the other, that of 
 Flamank v. Simpson, brought before this Court by Letters 
 of Request from the Bishop of Exeter, in which almost the 
 same questions were raised. The arguments in both cases 
 have occupied the attention of the Court for 16 days. The 
 learning, ability, and industry of the counsel have greatly- 
 assisted the Court in the execution of the difficult task which 
 it has to perform, namely, to give judgement upon the charges 
 preferred against Mr. Mackonochie and Mr. Simpson.
 
 A good deal has been said by the counsel on both sides 
 respecting the motives of the accuser and the accused in this 
 suit, but upon this subject the Court need say but very 
 little. 
 
 Mr. Martin has been allowed by the Bishop of London 
 to promote his Lordship*s office in this case, and I must, of 
 course, presume that his Lordship was satisfied upon good 
 grounds, both that it was proper that his office should be 
 promoted, and that Mr. Martin was a proper promoter; 
 because his Lordship, who has the advantage of having a 
 very learned legal adviser, was, no doubt, aware, from the 
 decision of the Queen's Bench in " Eegina v. Bishop of 
 Chichester," (2 El. & El., 209,) as well as from the decision 
 of the Privy Council in "Kay v. Sherwood," (Moore P.C. 
 Reports, 397,) that it was competent to him to exercise 
 his discretion as to whether his office should be promoted 
 or not. I must, therefore, consider Mr. Martin as having 
 obtained full sanction for the course which he has adopted, 
 and wholly decline to impute to him any unworthy motive 
 whatever for the part which he has taken in this suit. It 
 is, however, a matter of fact, admitted or proved before me, 
 that Mr. Martin is not, legally speaking, a parishioner of 
 St. Alban's, nor, of course, a churchwarden, a part of whose 
 office it is to represent to the Ordinary any misconduct on 
 the part of the incumbent. This fact, however, if it should 
 prove to be of any importance at all in this case, can only 
 relate to the subordinate question of costs, and in no way 
 affects my judgement upon the principal questions before me. 
 Upon the other hand, it is only fair to Mr. Mackonochie 
 to state, that it appears from the documents in the cause, 
 that havino; the cure of souls in one of the worst and most 
 neglected districts of London, and receiving moderate tem- 
 poral emolument, he has devoted himself to the discharge 
 of his holy office, and evangelizing an almost heathen 
 population. 
 
 It is hardly necessary to say that he is not on this 
 account entitled to conduct the services of the Church (if he 
 has done so) in a manner not authorized by the law. 
 
 There are two modes of procedure in the Ecclesiastical 
 Courts, one of a civil, and the other of a criminal, character. 
 There have been, in recent times, two leading judgements 
 delivered upon the lawfulness of certain ornaments (to which 
 word a precise legal meaning has been attached) used during 
 the celebration of Divine worship and certain decorations of 
 churches. 
 
 In both tbese judgements the questions for judicial decision 
 were raised in the civil form of procedure.
 
 8 
 
 The " Stone Altar Case " (as it has been commonly called) 
 arose on an application for a faculty in the Consistory of Ely, 
 and was brought on appeal to this Court. 
 
 The causes relating to the Knightsbridge Churches* were 
 instituted in a similar way in the Consistory of London, 
 from the decision of which Court an appeal was prosecuted, 
 first to the Court of Arches, and ultimately to the Judicial 
 Committee of the Privy Council, which last tribunal recom- 
 mended Her Majesty to reverse, upon many points, the 
 decision of the Courts below. As the Archbishops and the 
 Bishops, who are Privy Councillors, are only members of the 
 Judicial Committee in cases of criminal proceedings against 
 clerks in holy orders, the prelates who did sit on this last 
 occasion sat only as assessors and not as members of the 
 Court. 
 
 The proceedings taken in this case are of a criminal 
 character, and the sound of them, so to speak, is harsher than 
 that of those in the cases to which I have referred, but 
 substantially the same end is sought, and the same remedy 
 pursued ; and, with an exception to be hereafter stated, I am 
 not prepared to say, — inasmuch as not only certain ornaments, 
 but also the use of them in the services of the Church, are 
 complained of, — that it would have been competent to the 
 promoters to have brought before me in a civil form all the 
 matters contained in these criminal articles. 
 
 They are comprised under the following heads : — 
 
 (1.) The elevation of the Blessed Sacrament of the Lord's 
 Supper, accompanied in Mr. Mackonochie's case by 
 kneeling ^^or excessive kneeling" at times not 
 prescribed by the Rubrics. 
 
 (2.) The use of incense during the celebration of the 
 Eucharist. 
 
 (3.) The mixing of water with wine at the time of the 
 administration of the Lord's Supper. 
 
 (4.) The use of lighted candles upon the Holy Table. 
 
 It will be necessary presently to enter into a fuller and 
 more detailed statement of each of these charges, and of the 
 answers to them. I will only observe that, with one excep- 
 tion to be noticed hereafter, there is no dispute in the case 
 as to the facts to which the law is to be applied. 
 
 Statutes of Uniformity. 
 
 The law principally, though not exclusively, relied upon by 
 the counsel for the promoter is contained in the Statutes of 
 Uniformity. I must refer to these statutes. 
 
 * These cases are afterwards referred to as Liddell v. Westerton, &e.
 
 The first Statute is that of 2nd and 3rd Edward VI., c. 1., 
 which accompanied the first Prayer Book. The second is 
 that of 5th Edward VI.; c. 4., which accompanied the second 
 Prayer Book, and has been repealed. The third is that of 
 1st Eliz., c. 2., the penal sections of which are in force. 
 
 The additions made to the Prayer Book by James I. were 
 not accompanied by a separate Statute, but were made under 
 the powers conferred upon the Crown acting with the 
 Metropolitans, under a clause of the Statute of Elizabeth. 
 
 Fourthly, the present Statute of Uniformity, the 13th and 
 14th of Car. IL, c.4., which embodies so much of the Statute 
 of 2nd and 3rd Edward VI., c. 1., and of 1st Eliz., c. 2., as 
 were necessary for ^^ the establishing and confirming '' of the 
 new Prayer Book. 
 
 It is necessary to refer somewhat at length to the Statutes 
 now in force. 
 
 The 2nd and 3rd Edward VI., cap. 1., which is the first 
 Act of Uniformity of Edward VI., begins by reciting that 
 there had been in England " different forms of prayer ; that 
 " is to say, the use of Sarum, of York, of Bangor, of 
 " Lincoln, and besides the same now of late, much more 
 " divers and sundry forms and fashions have been used in 
 " the cathedral and parish churches of England and Wales, 
 " as well concerning matins or morning prayer and evensong, 
 " as also concerning the Holy Communion, commonly called 
 " the Mass, with divers and sundry rites and ceremonies 
 " concerning the same, and in the administration of the 
 " other sacraments of the Church ; and as the doers and 
 '^ executors of the said rites and ceremonies in other form than 
 " of late years they have been used were pleased therewith, 
 " so others not using the same rites and ceremonies were 
 '^ thereby greatly offended ; and, albeit, the King's Majesty, 
 " with the advice of His most entirely beloved uncle, the 
 " Lord Protector, with others of the council, hath heretofore 
 " divers times assayed to stay innovations or new rites, yet 
 *^ the same have not had such good success as His Highness 
 " required in that behalf; whereupon His Highness, by the 
 «^ most prudent advice, being pleased to bear with the frailty 
 ^^ and weakness of His subjects in that behalf, of His great 
 '^ clemency hath not been only content to abstain from 
 «^ punishment of those that have offended in that behalf, 
 " (for that His Highness taketh that they did it of a good 
 " zeal,) but also to the intent that uniform quiet and godly 
 «* order shall be had concerning the premises, appointed the 
 " Archbishop of Canterbury and certain distinguished men 
 ^^ to consider and ponder the premises, and thereupon having 
 " as well eye and respect to the most sincere and pure
 
 10 
 
 Christian religion tauglit by the Scriptures as to usages 
 in the Primitive Church, should draw and make one con- 
 venient, meet, and definite order, rite, and fashion of 
 common and open prayer, and administration of the 
 sacraments, to be had and used in His Majesty's realm 
 of England and Wales, the which at this time, by the 
 aid of the Holy Ghost, with one uniform agreement is 
 thus concluded, set forth, and delivered to His Highness, 
 to His great comfort and quietness of mind, in a book 
 entitled ' The Book of Common Prayer and Administra- 
 ' tion of the Sacraments, and other Rites and Ceremonies 
 ^of the Church, after the use of the Church of England:' 
 Wherefore the Lords spiritual and temporal, and the 
 Commons, in this present Parliament assembled, con- 
 sidering as well the most godly travel of the King's 
 Highness, of the Lord Protector, and of other His Highness' 
 council, in gathering and collecting the said Archbishop, 
 Bishops, and learned men together, as the godly prayers, 
 orders, rites, and ceremonies in the said book mentioned, 
 and the considerations of altering those things which he 
 altered, and retaining those things which he retained in 
 the said book, but also to the honour of God, and the 
 great quietness which by the grace of God shall ensue 
 upon the one and uniform rite and order in such common 
 prayer, and rites and external ceremonies, to be used 
 throughout England and in Wales, at Calice, and the 
 marches of the same, do give to His Highness most hearty 
 and lowly thanks for the same." Then it goes on and 
 ys, " That all and singular the ministers in any cathedral 
 or parish church shall be bounden to say and use matins, 
 evensong, celebration of the Lord's Supper, commonly 
 called the Mass, and administration of each of the sacra- 
 ments and all their common and open prayer, in such 
 order and form as is mentioned in this book, and none 
 other or otherwise." 
 
 It then enacts, " That if any manner of parson, vicar, 
 or other whatsoever minister that ought or should sing 
 or say the common prayer mentioned in the said book, 
 or minister the sacraments, shall refuse to use the said 
 common prayer or to minister the sacraments in such 
 cathedral or parish church, in such order and form as 
 they be mentioned and set forth in the said book, or shall 
 use, wilfully and obstinately standing in the same, any 
 other rite or ceremony, order, form, or manner of mass 
 openly or privately, or matins, evensong, or other open 
 prayer, than as mentioned and set forth in the said book," 
 he then becomes liable to certain penalties.
 
 11 
 
 The seventh section of this Act states, " That it shall ])e 
 " lawful for all men, as well in churches, chapels, oratories, 
 " or other places, to use openly any psalm or prayer taken 
 " out of the Bible at any time, not letting or omitting 
 " thereby the service or any part thereof mentioned in the 
 " said book." 
 
 The eighth section of this Act provides, " That the books 
 " concerning the said services shall, at the costs and charges 
 " of the parishioners of every parish and cathedral church, 
 " be attained and gotten before the Feast of Pentecost next 
 " following, or before; and that all such parishes and 
 '^ cathedral churches, or other places where the said books 
 " shall be attained and gotten before the said Feast of 
 " Pentecost, shall, within three weeks next after the said 
 " books so attained and gotten, use the said service, and put 
 " the same in use according to this Act." 
 
 The present Act of Uniformity, passed in the year 1662, 
 the 13th & 14th Car. IL, c. 4., is entitled "An Act for the 
 *' Uniformity of public Prayers, and Administration of Sacra- 
 " rnents, and other Rites and Ceremonies ; and for establish- 
 " ing the Form of making, ordaining, and consecrating 
 " Bishops, Priests, and Deacons in the Church of England." 
 
 The first section gives the following title to our present 
 Prayer Book : — " The Book of Common Prayer and adminis- 
 " tration of 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 and 
 '* manner of making, ordaining, and consecrating of Bishops, 
 " Priests, and Deacons." 
 
 The second section, after reciting " that nothing can con- 
 " duce more to the settling of the peace of the nation, nor 
 " to the honour of our religion and the propagation thereof, 
 " than a universal agreement in the worship of Almighty 
 " God, and to the intent that every person in this realm 
 " may certainly know the rule to which he is to conform in 
 ^' public worship and administration of sacraments, and 
 " other rites and ceremonies of the Church of England," 
 enacts, " That all ministers shall be bound to say and use the 
 " morning prayer, evening prayer, and celebration and 
 " administration of both sacraments, and aU other the 
 " public and common prayer, in such order and form as is 
 " mentioned in the book annexed and joined to the present 
 '' Act, intituled the Book of Common Prayer, and adminis- 
 ^' tration of the Sacraments, and other rites and ceremonies 
 " of the Church, according to the use of the Church of 
 '' England.''
 
 12 
 
 And by the 24th section it is further enacted, ^^ by the 
 " authority aforesaid, that the several good laws and 
 " statutes of the realm, which have been formerly made, 
 *^ and are now in force, for the uniformity of prayer and 
 " administration of the sacraments within this realm of 
 '^ England and places aforesaid, shall stand in full force and 
 *' strength, to all intents and purposes whatsoever, for the 
 " establishing and confirming of the said book,'' (intituled 
 as aforesaid) "hereinbefore 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/' 
 
 By the 17th section it is further enacted, ^^by the 
 *^ authority aforesaid, 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, or in any college or hall in either of the Uni- 
 " versities, 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." 
 
 By the Statute 1st Elizabeth, cap. 2., sec. 27., it is enacted, 
 " that all laws, statutes, and ordinances wherein or whereby 
 '^ any other service, administration of sacraments, or common 
 " prayer is limited, established, or set forth to be used within 
 " this realm, or any other the Queen's dominions or countries, 
 " shall from henceforth be utterly void and of none effect." 
 
 The main proposition upon which the alleged unlawfulness 
 of all the matters contained in the criminal articles has 
 been rested by the counsel for the promoter is, that they 
 are all, in effect, rites and ceremonies other than and addi- 
 tional to those which are prescribed in the Prayer Book and 
 the Act of Uniformity. 
 
 The answer to this charge is twofold : first, it is averred 
 that the matters complained of are not rites or ceremonies ; 
 secondly, that if they fall within either category they are 
 not " other than or additional to " those prescribed in the 
 Book of Common Prayer, in the sense of being at variance 
 with or repugnant to them, forasmuch as they are in 
 accordance with and subsidiary to them. 
 
 Under the first position they maintain that the terms 
 " rites and ceremonies " mean an entire service, such as 
 Masses for the Dead, or services for particular festivals ; or 
 customs, such as creeping to the Cross, and the like, which 
 were abolished at the time of the Reformation. 
 
 That the elevation of the Blessed Sacrament, excessive 
 kneeling, the use of incense, the mixing water with the wine.
 
 13 
 
 the lighting of candles^ are elements or ingredients of a rite 
 or ceremony, and not a rite or a ceremony fer se. 
 
 The terms rite and ceremony, as used in the first Prayer 
 Book, and from thence imported into our present Prayer 
 Book, are terms, so to speak, of ecclesiastical and ritual art, 
 and must be construed with reference to their use in con- 
 temporaneous and other works of writers upon ritual, unless 
 they receive a different meaning from a comparison of other 
 passages or parts in the Prayer Book or Statute in which 
 they are found. 
 
 I must, therefore, refer at length to the preface in our 
 Prayer Book, entitled, — 
 
 " Of rites and ceremonies. 
 
 ^^ Of such ceremonies as be used in the Church, and have 
 " had their beginning by the institution of man, some at the 
 " first were of godly intent and purpose devised, and yet 
 " at length turned to vanity and superstition ; some entered ' 
 '' into the Church by indiscreet devotion, and such a zeal as 
 '' was without knowledge ; and for because they were winked 
 " at in the beginning, they grew daily to more and more 
 '^ abuses, which not only for their unprofitableness, but also 
 ^' because they have much blinded the people, and obscured 
 ^^ the glory of God, are worthy to be cut away, and clean 
 " rejected : other there be, which although they have been 
 ^' devised by man, yet it is thought good to reserve them 
 " still, as well for a decent order in the Church (for the 
 ^^ which they were first devised), as because they pertain to 
 " edification, whereunto all things done in the Church (as 
 ^^ the Apostle teacheth) ought to be referred.'' 
 
 "But now as concerning those persons, which perad- 
 " venture will be offended, for that some of the old ceremonies 
 " are retained still: If they consider that without some 
 " ceremonies it is not possible to keep any order, or quiet 
 " discipline in the Church, they shall easily perceive just 
 " cause to reform their judgements. And if they think much, 
 " that any of the old do remain, and would rather have all 
 " devised anew : then such men granting some ceremonies 
 " convenient to be had, surely where the old may be well 
 " used, there they cannot reasonably reprove the old only 
 " for their age, without bewraying of their own folly. For 
 " in such a case they ought rather to have reverence unto 
 " them for their antiquity, if they will declare themselves 
 " to be more studious of unity and concord, than of innova- 
 " tions and new fangleness, which (as much as may be with 
 " true setting forth of Christ's religion) is always to be 
 " eschewed. Furthermore, such shall have no just cause
 
 14 
 
 " with the ceremonies reserved to be offended. For as thos® 
 " be taken away which were most abused, and did burden 
 " men's consciences without any cause : so the other that 
 " remain, are retained for a discipline and order, which (upon 
 " just causes) may be altered and changed, and therefore are 
 " not to be esteemed equal with God's law. And more- 
 '* over, they be neither dark nor dumb ceremonies, but are 
 " so set forth, that every man may understand what they 
 '' do mean, and to what use they do serve. So that it is not 
 " like that they in time to come should be abused as 
 " other have been. And in these our doings we condemn 
 "^ no other nations, nor prescribe anything but to our own 
 " people only: for we think it convenient that every 
 " country should use such ceremonies as they shall think 
 " best to the setting forth of God's honour and glory, and to 
 " the reducing of the people to a most perfect and godly living, 
 " without error or superstition ; and that they should put 
 " away other things, which from time to time they perceive 
 " to be most abused, as in men's ordinances it often chanceth 
 " diversely in divers countries." 
 
 " Some are put away, because the great excess and mul- 
 " titude of them hath so increased in these latter days, that 
 " the burden of them was intolerable ; whereof Saint Au- 
 " gustine in his time complained, that they were grown to 
 " such a number, that the estate of Christian people was in 
 " worse case concerning that matter, than were the Jews. 
 " And he counselled that such yoke and burden should be 
 " taken away, as time would serve quietly to do it. But 
 " what would Saint Augustine have said, if he had seen the 
 " ceremonies of late days used among us ; whereunto the 
 " multitude used in his time was not to be compared ? This 
 " our excessive multitude of ceremonies was so great, and 
 '' many of them so dark, that they did more confound and 
 " darken, than declare and set forth Christ's benefits unto 
 " us. And besides this, Christ's Gospel is not a ceremonial 
 " law (as much of Moses' law was), but it is a religion to 
 " serve God, not in bondage of the figure or shadow, but in 
 " the freedom of the spirit ; being content only with those 
 " ceremonies which do serve to a decent order and godly 
 " discipline, and such as be apt to stir up the dull mind of 
 '' man to the remembrance of his duty to God, by some 
 " notable and special signification, whereby he might be 
 " edified. Furthermore, the most weighty cause of the 
 " abolishment of certain ceremonies was, that they were so 
 " far abused, partly by the superstitious blindness of the 
 " rude and unlearned, and partly by the unsatiable avarice 
 " of such as souo-ht more their own lucre, than the glory of
 
 15 
 
 '•' God, that the abuses could not well be taken away, tlie 
 ■' thing remaining still." 
 
 " And whereas in this our time, the minds of men are so 
 ''' diverse, that some think it a great matter of conscience to 
 -' depart from a piece of the least of their ceremonies, they 
 •^ be so addicted to their old customs; and again on the 
 '' other side, some be so new-fangled, that they would 
 '' innovate all things, and so despise the old, that nothing 
 " can like them, but that is new ; it was thought expedient, 
 " not so much to have respect how to please and satisfy 
 " either of these parties, as how to please God, and profit 
 '' them both. And yet lest any man should be offended, 
 " whom good reason might satisfy, here be certain causes 
 " rendered, why some of the accustomed ceremonies be put 
 " away, and some retained and kept still." 
 
 " And although the keeping or omitting of a ceremony, in 
 " itself considered, is but a small thing ; yet the Avilful and 
 " contemptuous transgression and breaking of a common 
 '' order and discipline is no small offence before God, Let 
 " all things he done among you, saith Saint Paul, in a seemly 
 " and due order : the appointment of the which order per- 
 " taineth not to private men; therefore no man ought to 
 '' take in hand, nor presume to appoint or alter any publick 
 " or common order in Christ's Church, except he be lawfully 
 " called and authorized thereunto." 
 
 Perhaps it would be difficult to deduce from this language 
 any certain conclusion as to the precise sense in which the 
 terms Kites and Ceremonies are used. 
 
 In the first Prayer Book, at the close of the dissertation, 
 which is at the end of the services, " Of ceremonies, why 
 " some be abohshed and some retained," are " certain notes 
 " for the more explication and decent ministration of things 
 " contained in this book," one " note " is '' as touching 
 " kneeling, crossing, holding up of hands, knocking upon 
 '' the breast, and other gestures, they may be used or left as 
 " every man's devotion serveth without blame." 
 
 This note does not appear in the subsequent Prayer Books, 
 but, nevertheless, at the Hampton Court conference in the 
 year 1604, the Bishop of Winchester," replying to the ob- 
 jections made by the Puritans to the use of the Cross in 
 baptism and ceremonies generally, said, — 
 
 " In prayer, the kneeling on the ground, the lifting up 
 «« of our hands, the knocking of our breasts, are ceremonies 
 " significant : the first, of our humility coming before the 
 <^' mighty God ; the second, of our confidence and hope ; the 
 " other, of our sorrow and detestation of our sins ; and these 
 *^ are and may lawfully be used."
 
 16 
 
 " Mr. Dean of the Chapel remembred the practice of 
 " the Jews, who, unto the institution of the Passeover, 
 "^ prescribed unto them by Moses, had, as the rabbins wit- 
 " nesse, added both signes and words, eating soure herbs, 
 '^ and drinking wine, with these words to both, ^ Take, and 
 ''^ ^ eat these in remembrance,' &c. ; ' Drink this in remem- 
 " ' brance,' &;c. Upon which addition and tradition of theirs, 
 '^ our Saviour instituted the Sacrament of his last Supper, 
 '^ in celebrating it with the same words and after the same 
 '' manner; thereby approving that fact of theirs in par- 
 " ticular, and generally, that a Church may institute and 
 " retain a signe significant,^' which, says the reporter of the 
 conference, satisfied HisMajesty exceeding well, — (Cardwell; 
 Conferences on the Book of Common Prayer, p. 197.) 
 
 These gestures appear to me to have been considered as 
 ceremonies wisely left to every man's* discretion. 
 
 In the first " order of the Communion " which preceded 
 the first Prayer Book the Rubric says, " The time of the 
 " Communion shall be immediately after that the Priest 
 " himself hath received the Sacrament, without the varying 
 " of any other rite or ceremony in the Mass (until other order 
 " shall be provided), but, as heretofore, usually the Priest 
 " has done with the Sacrament of the Body," &c. 
 
 Here, again, rite and ceremony seem to be used for ele- 
 ments or portions of a service. 
 
 Let us consider the construction put upon the Latin terms 
 (from which, of course, the English terms are borrowed) ritus 
 et ccBremonicB by high Latin authorities. 
 
 Bona (^Opera Omnia, p. 562), writing, De Disciplina 
 psallendi, § III., says, 
 
 CceremonicB quid sint, et quae, hujus nominis origo. Earum 
 efficacia, et utilitas ad divinum cultum. Verce a falsis, et 
 super stitiosis discernend(B, Exteriores ceremonias sine interno 
 spiritu parum prodesse. 
 
 Sunt autem ceremonise, si proprie loqui velimus, 
 
 ritus sancti in sacrificiis, et divinis ofiiciis ad Dei cultum 
 adhibiti : sed migravit vocabulum in usus etiam profanes ; 
 nam cum homines instituissent sibi invicem inclinare, genua 
 flectere, manus osculari : hae et alias honoris exhibitiones, 
 cum proprio nomine carerent, coeptae sunt etiam ceremonise 
 dici. 
 
 Van Espen {Jus Eccles, Universum, p. 410, t. v., cap. 1, de 
 celehratione Missarum) speaking of the celebration of the 
 Eucharist, says : " Certum tamen est ipsum apostolis suis, 
 '' totique Ecclesiae, in eorum persona, potestatem auctorita- 
 '' temque dedisse ea omnia in augustissimi Imjus mysterii 
 '' ritihus seu cceremoniis addendi, demendi, immutandi quae.
 
 17 
 
 ^^ illius dignitati et populorum devotioni pro temporum et 
 " locorum diversitate magis congruere judlcarent." 
 
 Here, ritus and ccBremonicR are not separate services, but 
 certain ingredients or accompaniments of one service, that of 
 the Eucharist. 
 
 Gayanto (Vol. 1. p. 3. ed. 1823, Venice), a great Roman 
 ritualist, says, that Bona and Suarez both define ccBremonia 
 as " actio religiosa ad cultum et decentiam sacrificii ab 
 " ecclesia instituta." 
 
 He quotes Quarti's opinion as follows : 
 
 " Procedit Quarti ad dividendas cceremonias in eas, quss 
 ^' sunt intrinsec^ ipsi missse, et partes ejusdem, et consistunt, 
 '' dicit ipse, tum in verbis, tum in gestibus celebrantis, 
 " de quibus late Suarez, disp. 83 et 84, et in eas, quae 
 " sunt circumstantia3 extrinseca) ejusdem sacrificii, ut locus, 
 " tempus, vasa, et vestimenta sacra, &c. Dicit prjeterea, 
 *^ quod lUas c^remonlce, quae consistunt in gestibus, qu^edam 
 '^ inductee sunt propter decentiam operandi, nee habent aliam 
 " significationem, ex. gr. quod sacerdos dum signat seipsum, 
 " ponit sinistram sub pectore ; et alias inductae sunt propter 
 " significationem moralem, vel mysticam, verb. grat. mixtio 
 " aqucB cum vino,'' (observe these words,) " digitorum ablutio, 
 '^ crucis signa, de quibus Divus Thomas 3 part, qucest, 83, 
 " artic, 4, § 5. 
 
 " Verum, pace tanti viri, ego distlnguerem cseremoniam 
 " sacram a ritu, dicendo, ritus sacros conslstere in Illis preci- 
 " bus, epistola, evangello, &c., qu^ juxta ecclesl^e dlspo- 
 " sitionem recitari debent in missa; cseremoniam autem 
 " conslstere in soils gestibus, quibus pr^dictce preces juxta 
 " ejusdem eccleslte priescriptum peragi debent ad majorem 
 *^ omatum, et decentiam sacrificii, quod celebratur ; et revera 
 " Cieremonialla, seu libros cseremoniarum vocamus Illos, qui 
 " non orationes et preces dicendas prcescribunt, sed modum, 
 " quo illa3 dicendje sunt ; e contra Rituales nuncupamus illos, 
 " qui continent preces, seu alias orationes, quas recltandas 
 *^ praescribunt. 
 
 " Bitus, quoniam in verbis regulariter consistunt, vel sunt 
 " partes mlssse ordinariae, quia scilicet semper ingrediuntur 
 " ejus compositlonem ; vel sunt extraordinarias, sive mobiles, 
 *^ quia non semper ejus compositionem ingrediuntur, sed 
 " ad majorem quandoque adduntur . solemnitatem, atque 
 ^^ ornatum." 
 
 {Gavanto, Thesaurus Eacrorum Rituum, Vol. L,p>. 4. 
 Pars L, in Rubricd Generali.) 
 
 The Council of Trent, in the 22d session, the 5th chapter, 
 *^ De MisscE. C€remo7iiis et Ritihus,'' speaks as follows : 
 
 «^ Quumque natura hominum ea sit, ut non facile queat 
 
 B
 
 18 
 
 " sine adminieulis exterioribus ad rerum divinarum medita- 
 *' tlonem sustolli, propterea pia mater ecclesia ritus quos- 
 '' dam ut scilicet qujedara submissa voce alia vero elatiore 
 '' in missa pronuncierentur, instituit, ceremonias] item adlii- 
 " buit; ut" (these are the instances of ceremonies) "mysticas 
 '^ benedictiones, lumina, thymiamata, vestes, aliaque id genus 
 *^ multa ex apostolica disciplina et traditione, quo etmajestas 
 ^* tanti sacrificii commenderetur, et mentes fidelium per hsec 
 ** visibilia religionis et pietatis signa ad rerum altissimarum, 
 *' quae in hoc sacrificio latent, contemplationem excitarentur." 
 
 Whatever authority this passage may have, it would appear 
 to include under the title Ceremonm^ among other things, the 
 use of lights, of incense, and of vestments. 
 
 There is no doubt that the terms Rites and Ceremonies 
 are sometimes used in the sense contended for by the Defen- 
 dants ; but on the whole, the result of this examination of 
 authorities leads me to the conclusion that there is a legal 
 distinction between a Rite and a Ceremony ; the former con- 
 sisting in services expressed in words, the latter in gestures 
 or acts preceding, accompanying, or following the utterance 
 of these words. 
 
 Applying this principle to the charges before me, I am of 
 opinion, that the matters complained of must be considered in 
 law as ceremonies. 
 
 Before I proceed to consider the greater question, whether 
 they are ceremonies forbidden by the ecclesiastical law of 
 England, and more especially by that part of it which 
 consists of the provisions of the Prayer Book and the Statute 
 of Uniformity, I think it right to draw attention to the judge- 
 ment of the Church Universal, and especially of " that pure 
 " and apostolical branch of it established in this realm" 
 upon the general subject of ceremonies. 
 
 And from that judgement it will, I think, appear that an 
 essential distinction is drawn between those which are from 
 their origin immutable, and those which it is competent to 
 the proper authorities to mould according to the varying 
 necessities and exigencies of each particular Church. 
 
 The only orders given in the New Testament with respect 
 to the ritual of the Church are of the most general kind, and 
 are to be found in the following passages : Saint Paul in his 
 first epistle to the Corinthians directs, 
 
 TzaVTOL TTpog o\xo^o^y]i> y€U€(rda) 
 and again, 
 
 waUTOL ^\ja")(riiKovaig >tai ;^aTa rcH^iu y€U€(rdc6 
 which we render, 
 
 ''Let all things be done to edification," 
 and 
 
 " Let all things be done decently and in order."
 
 19 
 
 Saint Augustine, whose authority our Church so highly 
 regards, observes, (Ep. 36, torn. ii. p. 101,) *' In his rebus 
 " de quibus nihil certi statuit Scriptura Divina, mos populi 
 " Dei vel instituta majorum pro lege tenenda sunt." 
 
 And St. Jerome, to whom our articles refer, says (Ep. xxviii. 
 ad Lucinium Bseticum), '' Ego illud te breviter admonen- 
 '* dum puto traditiones ecclesiasticas prsesertim " (remark 
 the caution) '' quae fidei non officiant ita observandas ut a 
 ^' majoribus traditae sunt: nee aliorum consuetudinem 
 'f aliorum contrario more subverti. Sed unaquaeque pro- 
 " vincia abundet in suo sensu, et prsecepta majorum leges 
 " apostolicos arbitretur." 
 
 When Augustine, the missionary of Gregory the Great 
 (to whom this country is so much indebted), found the 
 ancient British Churches in possession of a ritual in accord- 
 ance with the Galilean use and that of the Eastern Church, 
 he became perplexed what course to pursue, and wrote for 
 advice on the subject to the Pope. From our old historian 
 Bede we learn how wise an answer he received : 
 
 (Beda, Hist. i. 27, II. Interrogatio Augustini.) ^'^ Cum 
 " una sit fides," wrote Augustine, '^ cur sunt ecclesiarum 
 " diversse consuetudines, et altera consuetudo missarum 
 *^ in sancta Komana, ecclesia, atque altera in Galliarum 
 «' tenetur ? Eespondit Gregorius Papa. Novit fraternitas 
 " tua Romanae ecclesiae consuetudinem, in qua se meminit 
 " nutritam. Sed mihi placet, sive in Eomana, sive in 
 " Galliarum, seu in qualibet ecclesia aliquid invenisti quod 
 " plus Omnipotenti Deo possit placere, sollicite eligas, et in 
 " Anglorum ecclesia, quae adhuc ad fidem nova est, insti- 
 ^^ tutione praecipua, qua? de multis ecclesiis colligere potuisti, 
 " infundas. Non enim pro locis res, sed pro bonis rebus 
 " loca amanda sunt. Ex singulis ergo quibusque ecclesiis, 
 " qu£e pia, qu^ religiosa, qu^e recta sunt elige, et haec, quasi 
 " in fasciculum collecta, apud Anglorum mentes in consue- 
 " tudinem depone." 
 
 According to a later historian of our Church, the learned 
 Field, Dean of Gloucester : 
 
 " Ceremonies are outward acts of religion, having instltu- 
 '^ tlon, either from the instinct of nature, as the lifting up of 
 *^ the hands and eyes to heaven, the bowing of the knee, the 
 " striking of the breast, and such like ; or immediately from 
 " God, as the sacraments; or from the Church's prescrip- 
 '^ tion : and either only serve to express such spiritual and 
 " heavenly affections, dispositions, motions, and desires as 
 '' are or should be in men ; or else to signify, assure, and 
 " convey unto them such benefits of saving grace as God in 
 « Christ is pleased to bestow on them. To the former 
 
 B 2
 
 20 
 
 " purpose and end the Churcli hath power to ordain cere- 
 " monies ; to the later, God only." {Field, of the Church, 
 Vol IL, p, 527.) 
 
 And Burnet in his History of the Eeformation (Ed. Po- 
 cock, Vol. II., p. 155), expressing himself with greater accu- 
 racy than usual, in speaking of the use of a ceremony in 
 relation to the belief of the Church, says, "This seems 
 " more necessary to be well explained, by reason of the 
 *^ scruples that many have since raised against significant 
 '^ ceremonies, as if it were too great a presumption in any 
 " Church to appoint such, since these seem to be of the 
 *^ nature of sacraments. Ceremonies that signify the con- 
 '' veyance of a Divine grace and virtue are indeed sacra- 
 " raents, and ought not to be used without an express 
 " institution in Scripture ; but ceremonies that only signify 
 " the sense we have, which is sometimes expressed as sig- 
 " nificantly in dumb shows as in words, are of another kind ; 
 " and it is as much within tlie power of the Church to 
 ^' appoint such to be used, as it is to order collects and 
 *' prayers, words and signs being but different ways of 
 " expressing our thoughts." 
 
 The language of our Church in her articles on this subject 
 is expressed as follows : In Article XX. — 
 
 " Of the Authority of the Church. 
 
 " The Church hath power to decree rites and ceremonies, 
 '' and authority in controversies of faith : And yet it is not 
 *^ lawful for the Church to ordain anything that is contrary 
 " to God's Word written, neither may it so expound one 
 " place of Scripture, that it be repugnant to another. 
 " Wherefore, although the Church be a witness and a keeper 
 '' of Holy Writ, yet, as it ought not to decree anything 
 '' against the same, so besides the same ought it not to 
 " enforce anything to be believed for necessity of salvation." 
 
 And in the XXXIVth Article,— 
 
 "Of the Traditions of the Church. 
 
 "It is not necessary that traditions and ceremonies be 
 " in all places one, or utterly like, for at all times they 
 " have been divers, and may be changed according to the 
 '^ diversities of countries, times, and men's manners, so that 
 '' nothing be orddlned against God's Word. Whosoever 
 " through his private judgment, willingly and purposely, doth 
 " openly break the traditions and ceremonies of the Church, 
 «^ which be not repugnant to the Word of God, and be 
 " ordained and approved by common authority, ought to be 
 *^ rebuked openly (that others may fear to do the like), as
 
 21 
 
 *' he that oiFendeth against the common order of the Church, 
 *' and hurteth the authority of the magistrate, and woundeth. 
 " the consciences of the v/eak brethren. 
 
 " Every particular or national Church hath authority to 
 *' ordain, change, and abolish ceremonies or rites of the 
 *' Church ordained only by man's authority^ so that all 
 ^' things be done to edifying." 
 
 Bishop Beveridge (few higher authorities could be in- 
 voked) in his " Ecclesia Anglicana Ecclesia Catholica, or 
 " the Doctrine of the Church of England consonant to 
 " Scripture, Beason, and Fathers, in a Discourse upon the 
 " Thirty-nine Articles," (Oxford Edition, 1840,) Vol. II., 
 p. 119, thus comments upon Article XX. " Of the Authority 
 of the Church:"— 
 
 " First, (he says) it hath power to decree rites and cere- 
 '^ monies, so that it is lawful for the Church to decree and 
 " appoint what rites or ceremonies shall be used in the 
 ^' public worship of the great God ; not as parts of that 
 '^ worship, for then they would not be rites and ceremonies. 
 " And therefore it is in vain objected by the adversaries to 
 " this truth, that herein we give the Church power to add 
 " anything to God's worship which is not commanded in his 
 " Word ; as if rites and ceremonies were in themselves any 
 " part of worship. Whereas what is any part of God's 
 '^ worship cannot be a mere rite or ceremony, neither can 
 " that which is a mere rite or ceremony be any part of his 
 " worship. For rites and ceremonies, in that they are 
 " nothing but rites and ceremonies, be in themselves in- 
 " different, neither good nor bad, until determined by the 
 " Church ; after which determination also they still remain 
 " indifferent in themselves, and are good and bad only in 
 " reference to their decree, who had power and authority to 
 " determine them. Whereas every the least part of God's 
 '^ worship can be by no means omitted without sin, and 
 " therefore when it is here said that the Church hath power 
 " to decree rites and ceremonies, we must always by the 
 " words rites and ceremonies understand nothing else but 
 " the particular circumstances and customs to be observed 
 " in the service and worship of God, not as any cause or 
 " part thereof." 
 
 • • • • » 
 
 Again the Bishop says, (p. 121) — 
 
 " We must needs grant that the Church of Corinth (and 
 " so other Churches) had power and authority to determine 
 " and order these things. Or, if they had no such power 
 " before, yet St. Paul, or rather the Most High God by
 
 22 
 
 " St. Paul, did in these words grant them such a power and 
 
 ^* authority, in the decreeing these and the like circum- 
 
 " stances and ceremonies for the more decent and orderly 
 
 " worshipping of the Glorious Jehovah, giving them this 
 
 " one general comprehensive rule, ^ Let all things be done 
 
 *^ ^ to edifying, and in order ;' out of which one general rule, 
 
 " that, and all Churches whatsoever, according to the variety 
 
 " of times and places they live in, were to frame other 
 
 *^ particular rules and canons for the edifying and orderly 
 
 *^ performance of God's worship ; who being a God, 
 
 " not of confusion, but of order in himself, he ^ requires 
 
 " such worship as is done in order, not in confusion, from 
 
 (P-123)— 
 
 " Neither can I see in reason how this power m ceremonies 
 
 '^ and controversies should be denied the Church. For first, 
 
 '^ as for ceremonies, they cannot but be acknowledged to be 
 
 " indifferent, neither in themselves good nor bad; and if 
 
 " they be in themselves either good or bad and not in- 
 
 " different, they are not merely ceremonies, especially if 
 
 " they be in their own nature bad and sinful, they are not the 
 
 " ceremonies intended in this place. For this same Article, 
 
 ^^ in the following part of it, doth determme that the cere- 
 
 " monies here intended are only such as are not against the 
 
 " Scripture, and by consequence not unlawful. Now such 
 
 " rites and ceremonies as are in themselves indifferent, it 
 
 '^ can be no sin to determine them to either part ; for 
 
 " which part soever they are determined to, they cannot be 
 
 " determined into sin. I mean, what is in itself indifferent, 
 
 " and so may be used or not used without sin whether it 
 
 " be decreed to be used, or not to be used, it cannot be 
 
 " any sinful decree, especially when, after as well as before 
 
 *' the decree, they are still acknowledged to be in themselves 
 
 " indifferent, though not as to our use. Which things of 
 
 " indifferency also, as all ceremonies are, cannot be supposed 
 
 ^' to come within the command of God, for then they would 
 
 ^' not be indifierent ; and seeing God hath not left any par- 
 
 " ticular command, but only a general rule about all things 
 
 « of indifferency, that they be so ordered that they be done 
 
 " decently and to edifying, the Church cannot be thought 
 
 " to sin in determining them, so as she thinks the most 
 
 " edifying and decent, as we shall by the blessing of G d 
 
 " see more fully in the Thirty-fourth Article. And if it 
 
 " be no sin thus for the Church to determine ceremonies, 
 
 " it must needs be granted that she hath power to decree 
 
 « them.",
 
 23 
 
 And on Article XXXIV. ^^Ofthe Traditions of the Church/' 
 the Bishop observes, (p. 322) — 
 
 '' But there being many circumstances^ required to the 
 '' performance as well of religious as civil actions, and so 
 " to the worship of God as well as anything else, as, for 
 " example, the time when, the place where, the habit m 
 '' which His public service shall be performed, and the like, 
 '' it being impossible it should be performed without these 
 " and the like circumstances, and seeing the all- wise God 
 « hath thought good not to determine these in His Word, 
 " but to leave it to the discretion of the Church to deter- 
 '' mine them as it shall see fit, only giving them this general 
 ^' rule to square all these their determinations by — 
 
 " Let all things be done decently and in order." 
 *' Hence it is that every particular Church hath still thought 
 '' fit to exercise this her power and authority in determin- 
 " ing these circumstances, according to that manner as 
 « seemeth to herself orderly and devout, so that there is no 
 « necessity that one Church should determine them after the 
 " same manner that another doth ; nay, it is often necessary 
 '' that one Church should not follow another in this case; 
 '' for it often so falls out that what is decent in one place is 
 " unseemly in another, and every Church is bound to model 
 " circumstances according to that order which is the most 
 '' seemly and decent in the place where it is settled." 
 
 • • • * 
 
 (p. 335)— 
 
 '' And if we should descend down to after councils, we 
 « shall find there was scarce ever a Provincial Church met 
 " together in council since our Saviour's time but did not 
 " ordain some ceremonies or other to be observed by her 
 ^^ children. It would be an endless thing to reckon up all 
 " the ceremonies that were ordained or altered by Provincial 
 " Churches ; or indeed, all the Provincial Churches that 
 «^ ordained or altered ceremonies in the primitive times. I 
 « shall, therefore, instance only in such ceremonies as our 
 « Church hath thought good still to retain, that so we may 
 " see both how Provincial Churches have still looked upon 
 '' themselves in all ages to have power to ordain ceremonies, 
 « and also, that the ceremonies retained and ordered by our 
 " Church are no new-fangled ceremonies, nor Popish super- 
 " stitions, but that most of them were ordained and used in 
 « the Primitive Church before the Pope had forged his 
 <^ superstitions." 
 
 This very learned prelate then recites a great number ot 
 instances in which the Provincial Councils of different 
 countries have made ordinances with respect to their own
 
 24 
 
 ritual observances, and adds, ^^ And thus we see how many, 
 '' even of the very rites and ceremonies which are still in 
 " use amongst us, were long ago ordained by Provincial 
 " Churches met together in council. Many more might I 
 " heap up to the same purpose, but these may be enough 
 " to show how the Provincial or National Churches of 
 " Christ, in all ages, since His Incarnation, have still 
 *^ exercised this power in ordaining, altering, and abolishing 
 " ceremonies, which certainly they would never have done 
 " if they had not believed they had power to do it." 
 
 Bishop Jeremy Taylor, (Vol. XIV., Heber's edition,) in 
 his " Kule of Conscience" (p. 21), lays down as Rule XII., 
 All those Rituals 2vhich were taught to the Church hy the 
 Apostles concerning Ministries, lohich were of Divine institution, 
 do oblige all Christendom to their observation. 
 
 And on this rule he observes, — 
 
 " (1.) I instance in the Holy Sacrament first of all; con- 
 '^ corning which the Apostles delivered to the Churches the 
 " essential manner of celebration, that is, the way of doing 
 " it according to Christ's commandment, for the words 
 " themselves, being large and indefinite, were spoken indeed 
 " only to the Apostles, but yet they were representatives of 
 " all the whole ecclesiastical order in some things, and of 
 " the whole Christian Church in other ; and, therefore, 
 ^^ what parts of duty, and power, and office did belong to 
 " each, the Apostles must teach the Church, or she could 
 " have no way of knowing without particular revelation. 
 
 " (2.) Thus the Apostles taught the Bishops and Priests 
 " to consecrate the symbols of bread and wine before they 
 " did communicate ; not only because by Christ's example 
 *^ we were taught to give thanks before we eat, but because 
 " the Apostles knew that the symbols were consecrated tg 
 " a mystery. And that was done from the beginning, and in 
 ^' all Churches, and in all ages of the Church ; by which we 
 ^' can conclude firmly in this rule, that the Apostles did give 
 " a canon or rule to the Churches to be observed always, and 
 " that the Church did never believe she had authority or 
 " reason to recede from it. For in those rights which are 
 '' ministries of grace, no man must interpose any thing that 
 '^ can alter any part of the institution, or make a change or 
 ^- variety in that which is of Divine appointment. For the 
 " effect in these things depends wholly upon the will of God, 
 *' and we have nothing to discourse or argue ; for we know 
 " nothing but the institution, nothing of the reason of the 
 *' thing, and therefore we must in these cases, with simplicity 
 " and obedience, apply ourselves to practise as we have 
 *^ received, for we have nothing else to guide us. Memory
 
 25 
 
 *^ and obedience, not discourse and argument, are here in 
 " season/' 
 
 The Bishop then proceeds to distinguish between alter- 
 able and unalterable rites, as follows (p. 23) : — 
 
 '' But where the Apostles did not interpose, there the 
 " Churches have their liberty ; and in those things also, which 
 " evidently were no part of the appointed liturgy or 
 " ministration, in those things, though it be certain the 
 " Apostles did give rules of order and decency, yet because 
 '^ order is as variable as the tactics of an army, and decency 
 " is a relative term and hath a transient and changeable 
 " sense, in all these things there is no prescription to the 
 '^ Church, though we did know what the Churches apostolical 
 " did practise, for they did it with liberty, and, therefore, 
 " we are not bound ; the Churches are as free as ever ; 
 *^ though the single persons in the Churches can be bound, 
 *^ yet the Churches always have liberty/'* 
 
 Luther in the " Formula Missas et Communionis " for the 
 Church of Wittemberg, which appears to have been written 
 in 1523, speaking of the ceremonies of Divine worship which 
 he recommends, says : — 
 
 " Sexto, requitur Evangelii lectio. Ubi nee candelas 
 '' neque thurificationem prohibemus, sed nee exigimus, esto 
 " hoc liberum/'t 
 
 * The Bishop continues (p. 109) thus : — 
 
 " This rule is to be understood positively and affirmatively, that is, the 
 " Church in all her constitutions must take care that the Church be edified 
 " and built up in some grace or other ; but not so, that whatsoever is for edifi- 
 " cation, she hath power to command. The measures and limits of her legis- 
 *' lative power I have already described; it must be within those circles: and 
 " though other things without them may be useful and fit for instruction, or 
 " to promote the interest of a virtue, yet Christ hath left them at liberty, and 
 " His Church hath no power to bind beyond His commission. They can 
 " exhort and persuade, and, by consent, they can prescribe, but to the making 
 *' of a law there is something else required besides that it be apt to edify or to 
 " instruct. For (besides that it must be of something placed in her power) it 
 " must edify, and not destroy; it must build up, and not pull down ; that is, it 
 " must build with all hands, and not pull down with one. 
 
 " I instance in the institution of significant ceremonies, that is, such which 
 " are not matters of order and decency, but merely for signification and the 
 " representment of some truth or mystery. Those which are prudently 
 *' chosen are in their own nature apt to instruct. Thus, the use of pictures in 
 " the Greek and in the Lutheran Churches is so far useful, that it can 
 " convey a story, and a great and a good example to the people that come 
 " thither, and so far they may be for edification. But because these can also, 
 " and do too often degenerate into abuse, and invade religion, to make a law 
 " of these is not safe ; and when that law does prevail to any evil that is 
 " not easily by any other means cured, it does not prevail upon the con- 
 *' science, and, indeed, to make a law for the use of them, is not directly 
 " within the commission of the ecclesiastical power." 
 
 t The note of the learned editor, Daniel, in his edition of the Codex Liturgicus, 
 (Leipsic, 1848,) on this, is: 
 
 ." Sunt quibus thuris odor tam luculentum sit documentum Romanismi, ut,
 
 The same spirit of true liberality is exemplified in the 
 writings of the late most distinguished American Prelate, 
 the Bishop of Vermont. Speaking of ornaments used in the 
 services of the Church, he observes : — 
 
 ^« The same liberty exists with regard to lights upon or 
 " behind the altar, the use of chrism and incense, the 
 " mixing of water with the wine of the Holy Eucharist, and 
 " the representation of figures and emblems in stained glass 
 *' windows'; for all of these were established by usage in the 
 " second year of Edward VI., and our Church has uttered 
 " no prohibition concerning any of them, but has merely 
 <^ omitted to notice them, directly or indirectly, in her whole 
 *^ legislation. It is certain that none of these things interfere 
 " with our liturgy, because they may be used without 
 *^ deviating in the slightest degree from our prescribed 
 " forms. 
 
 " And the plain result would seem to be, that their intrb- 
 " duction, whether expedient or not, can never be justly 
 " considered unlawful/' — {Law of Ritualism, by Bishop of 
 Vermont, p. 84.) 
 
 Great variety of usage is to be found in the Greek, the 
 Roman, the Gallican, and the English Churches upon this 
 subject. All persons moderately acquainted with Ecclesias- 
 tical history are aware with what zeal and tenacity the 
 Church of Milan* has clung to its Ambrosian rite ; — of the 
 various liturgies of the Greek Church, and the different uses 
 in England which, though much reconciled by the famous 
 use of Sarum, were ultimately merged in our present Prayer 
 Book. 
 
 " si navibus ducant bonos odores thymiatum, statlm clament, se odorari 
 " ecclesiam Romano-Catholicam. Vident, thuris oblationem Luthero esse 
 " aZiacpopov. Hoc tameu certum est, tburificationis vestigia in ecclesia 
 " Lutberi exstare vestigia fere nulla (of. p. 24.) In hac urbe nostra Halensi 
 " see plus vidi in ecclesiis tribus niajoribus, si stunmse celebrabantur festivitates, 
 " pueros, cum acerris fumigantibus ecclesise navim percun-entes : sed hsec 
 " cserimonia magis ad evu^iav quandam respicere videtur, quani ad cultum 
 " divinum." 
 
 * The writer speaking of the reforms of the Koman Liturgy about the time'of, 
 and after the Council of Trent, ascribes the preservation of the Use of Milan, to 
 the energy of the great Archbishop San Carlo Borromeo: 
 
 " Or diro di quanto ha fatto S. Carlo per la difesa e per la ristorazione del 
 " riti e delle ceremonie Ambrosiane. Se un uomo di debole tempra avesse a 
 " quel tempi tenuta la seda Arcivescovil e di Milano, I'antichissima nostra 
 " hturgia, espressione e conservazione di piu riti primitivi, era forse per 
 " subire quelle sorti, che toccarono, gia son piu secoli, alia gallicana poi alia 
 " mozarabica 
 
 " Ora non e piu a temersi alcun pericolo per la continuity del rito Ambrosiano 
 " immobilmente stabilito sul possesso e sulla pratica di presso a diciotto 
 '* secoli, e tenuto in conto di caro e prezioso deposito che i presenti han ricevuto 
 " dai maggiori e devono tramandare ai posteri intatto ed illibato." — (Espo- 
 sizione delle Ceremonie della Messa Privata giusta il Rito Ambrosiano, 
 p. 18 e 20.)
 
 27 
 
 I will close my citations on this subject with one from the 
 Great Roman Ritualist, Bona : 
 
 ^^ Quarto tanquam verissimum, et apud omnes indubitatum 
 " habendum est id quod ssepius in hoc libro repetendum fuit, 
 " qusedam esse in ecclesia, quae ad fidem ut dogmata, 
 " qusedam quse ad ritus ut mores pertinent. Quse fidei 
 " sunt, sancta inviolabilia, immutabilia semper, et ubique 
 '^ manent ; Deumque solum auctorem agnoscunt. Ad ea 
 " credenda C£eco quodam obsequio captivum ducimus intel- 
 " lectum ; ut si quis ea turbare, vel quovis modo immutare 
 '^ aut iis contradicere ausus fuerit, diro anathemate perculsus 
 " extra ecclesiam fit, nee locum deinceps habet inter Ortho- 
 " doxos. Ritus et ea quse morum, ac disciplinse sunt ab 
 " hominum arbitrio pendent, et cum tempore variantur, 
 " rerumque statu immutato veteres consuetudines abrogan- 
 " tur, et novae succedunt, illsesa fidei unitate/' — {Bonce, 
 Opera Omnia, " Rerum Liturgicarum,^^ Lib. i., cap. xxiii., 
 p. 265.) 
 
 " Moribus autem immutatis sacros quoque ritus variari 
 *' consequens fuit." 
 
 '^ Distinguend^e igitur setates disquirenda mutationis ratio 
 '^ et omnia ad sua principia revocanda sunt ut certa rerum 
 ** notitia habeatur." {Bona, Rer, Lit., Lib. i., c. 18, s. 1, 
 p. 242.) 
 
 (IX.) Ritus ac caerimoniae non in aeternum permanent 
 tollique possunt ac mutari sine fidei ac unitatis dispendio. 
 (/6. § 9, p. 247.) ^ 
 
 I have thought it expedient to recite the foregoing autho- 
 rities upon the nature of Rites and Ceremonies in order to 
 fortify my position, that the questions now pending before 
 me in no way aifect the relations of the Church of England 
 to the Church Catholic, but have reference solely to matters 
 of detail and order in her ministrations, which every inde- 
 pendent Church has at all times claimed and exercised ; and 
 having thus, I trust, divested^the issue of the case before me 
 of that importance which has been, not unnaturally perhaps, 
 ascribed to it by the excited feelings of both parties, I 
 return to the consideration of the charges contained in 
 these criminal articles. 
 
 I am not called upon to pronounce in the judgment which 
 I am about to deliver any decision upon any question of 
 doctrine. If, indeed, the law had cast so grave a respon- 
 sibility upon me, I should have much considered whether it 
 would not have been right and proper to have invoked the 
 aid of spiritual assessors, competent from their position and 
 learning in the Church, to have assisted and guided me in 
 the discharge of such a duty. I thank God, however, that
 
 28 
 
 no such consideration embarrasses me on the present 
 occasion. 
 
 Criminal Articles in the Ecclesiastical Court distinguished 
 from an Indictment, 
 
 Two conclusions result from the premises which I have 
 stated : first, that the matters in dispute are Ceremonies ; and 
 secondly, that they belong to that category of Ceremonies 
 which are designated " mutable." 
 
 There is also a proposition of fact which should be 
 mentioned in this place, that none of the ceremonies com- 
 plained of are expressly directed to be used either in the 
 Prayer Book or the Act of Uniformity. 
 
 The promoter avers, and undertakes to prove, that with 
 respect to these matters of charge, Mr. Mackonochie has 
 violated the Statutes of Uniformity, certain specified canons 
 of those enacted by the Convocation and Crown in 1603, 
 and the general ecclesiastical lavf . 
 
 The counsel for Mr. Mackonochie have contended, that 
 inasmuch as a breach of the Statutes of Uniformity rendered 
 Mr. Mackonochie liable to be proceeded against criminally 
 in a court of common law, as well as in this court, I am 
 bound to apply the same rules and observe the same strict- 
 ness required by the common law courts in a matter of 
 indictment. I am of a different opinion, having regard both 
 to principle and to precedent; nor do I admit the pro- 
 position that unless Mr. Mackonochie be proved to have 
 committed a breach of the Statutes of Uniformity, although 
 he should be proved to have offended against the law 
 ecclesiastical, that he is entitled to an acquittal from the 
 charges now laid against him. I deem it to be my duty to 
 consider whether the defendant be or be not proved to have 
 offended against the laws ecclesiastical in the matter of one 
 or more, or all, of these criminal charges, and to give my 
 decision accordingly. 
 
 I have been referred to a case (li. v. Sparkes, 3 Mod. 
 Eep., 79 ; Cripps, Laws of the Church, G26 ; 2 Bum's Eccl. 
 Law, 429). This was an indictment in the first year of 
 James II. against a clergyman, at the Quarter Sessions in 
 Devonshire, for using alias preces in the Church, and alia 
 modo than mentioned in the Book of Common Prayer ; and 
 the indictment concluded contra formam statuti, &c. He 
 was found guilty, and fined 100 marks. Upon writ of error, 
 it was admitted tliat offences against these statutes might be 
 inquired of by the justices, but the indictment was held 
 bad, for that it ought to have alleged that the defendant
 
 29 
 
 used other forms and prayers instead of those enjoined, 
 which were neglected by him ; for that otherwise any 
 person might be indicted who used prayers before his 
 sermon other than such as are required by the Book of 
 Common Prayer; and Mr. Cripps observes, that although 
 this decision established that justices had jurisdiction in such 
 cases, and that indictments, properly framed for offences 
 against these statutes, might be inquired of by them, yet it 
 is probable that indictments of this nature have been very 
 rarely, if ever, preferred ; for the jurisdiction of the eccle- 
 siastical court was in no way taken away by those statutes. 
 And wherever it may have been necessary to institute any 
 penal proceedings against clergymen for the omission of, or 
 addition to, anything contained in the Book of Common 
 Prayer, the proceeding has i)robably been always in the 
 ecclesiastical court ; and, indeed, prosecutions in the tem- 
 poral courts upon those statutes seem to have been dis- 
 couraged by the judges ; for in a case at the Thetford Lent 
 Assizes in 1795, a clerk was indicted upon these statutes, 
 but the evidence was not that he left out or added any 
 prayers, or altered the form of worship, but that he did not 
 read prayers twice on a Sunday, but alternately one Sunday 
 in the morning and the next in the evening, and omitted to 
 read them at all on certain saints' days. Mr. Baron Perryn, 
 who tried the indictment, observed, that it was primcB 
 impressionis, and being of opinion that the offence complained 
 of was purely of ecclesiastical cognizance, and not the subject 
 of prosecution in the temporal courts, directed the jury 
 to acquit the defendant, which they accordingly did. 
 
 Looking at all the circumstances it does not appear to me 
 that the case of Eex v. Sparkes is worthy of much attention, 
 and it will in no way influence my judgement. 
 
 The principal heads under which the argument of the 
 Counsel for the Promoter may be ranged appear to me to be 
 the following: 
 
 First. That as by each and all of the practices charged in 
 
 these articles, a new rite or ceremony has been added 
 
 by Mr. Mackonochie to those which are prescribed by 
 
 the Statutes of Uniformity, such practices are unlawful. 
 
 Secondly. That these particular additions are expressly 
 
 prohibited. 
 Thirdly. That they are by necessary implication pro- 
 hibited, inasmuch as they are connected with Roman 
 or Popish doctrines. 
 Fourthly. That as such they have, as a matter of fact, been 
 
 disused ever since the Eeformation. 
 Now it appears to me necessary to examine, in the first
 
 3Q 
 
 instance, these two last grounds of objection, inasmuch as a 
 consideration of the weight due to them must affect the 
 general application of the law, — wherever it be obscure or 
 ambiguous, or silent as to positive precept, — to the particular 
 subject of these criminal charges. 
 
 Identity of the Status of the Church before and after the 
 Reformation. 
 
 I will, therefore, consider in the first Instance what weight 
 is to be ascribed to the proposition — 
 
 ** That they are by necessary implication prohibited, in- 
 '^ asmuch as they are connected w^ith Eoman or Popish 
 '' doctrines." 
 
 The counter proposition appears to be that the similarity 
 of these ornaments and practices with those in the Church 
 of Rome does not furnish a safe criterion whereby to try the 
 question of their legality in the Church of England. That 
 the true criterion is conformity with primitive and catholic 
 use, and not antagonism to Rome. 
 
 A great part of the arguments addressed to me by the 
 Counsel on both sides was founded upon one or the other 
 of these propositions. 
 
 I am very far from complaining of these arguments, or of 
 the length to which they extended, for in my opinion a 
 careful consideration of these propositions, however large, 
 grave, and difficult, is a necessary preliminary to the due 
 construction of the laws, formularies, and usages involved in 
 the present inquiry. 
 
 They must, if this construction be doubtful, receive, so to 
 speak, a colour and complexion from the judgement which is 
 formed upon the spirit and principles which governed the 
 Reformation of our Church. 
 
 It is my duty to form this judgement upon an historical 
 examination — however unequal my powers may be to the 
 task — into the principal acts of the State and the Church 
 which, since the great epoch of the Reformation, have intro- 
 duced, accompanied, and settled the ecclesiastical establish- 
 ment of this kingdom. 
 
 It is scarcely necessary to say that where the langunge of 
 a Statute is plain I must obey it, or that where the Court 
 of Appeal has laid down a principle applicable to this case, I 
 must follow it. But, where I have no such guide, I must 
 seek the exposition of the law from the general language 
 of the cardinal statutes, the public and authoritative decla- 
 rations which accompanied and illustrated them, the judicial 
 construction which they have received, the formularies which
 
 31 
 
 these Statutes ordered, whether with or without the con- 
 current sanction of the Church, though happily the latter 
 alternative is of rare occurrence ; I must also consider the 
 canons which bind the clergy, and the opinions of the 
 Bishops and great divines of our Church, who were not 
 unfrequently also the councillors of the State and the authors 
 of the formularies. 
 
 A. — Identity in Law, 
 
 I propose to pursue my investigation in the following 
 order : first, I will consult the law ; secondly, I will have 
 recourse to historical and theological statements. 
 
 The inquiry into the law admits of the following sub- 
 divisions : the statute law ; the canons enacted since the 
 Reformation ; and the general common law of the Church. 
 
 * In the history of no kingdom is the independence of the 
 National Church written with a firmer character than in that 
 of England, in the Statutes of the Realm, in the decisions 
 of Judicial Tribunals, and the debates of Parliament. 
 
 The Constitutions of Clarendon, in Henry the Second's 
 reign (A.D. 1164), though directly aimed at the repression of 
 the inordinate claims and privileges of the National Church, 
 were, no doubt, indirectly " calculated," as Hume observes, 
 " to establish the independency of England on the Papacy ;" 
 and therefore, when the King sought Pope Alexander's 
 ratification of them, that Pontiff annulled and rejected all 
 but six out of the sixteen memorable articles. 
 
 The resistance of Beckett, and, still more, the general 
 feeling excited by the wicked and impolitic murder of that 
 prelate, procured the practical abrogation of the articles 
 objected to, by the enactments of Edward I. and III., of 
 Richard II., of Henry IV. and V., and of Edward IV. 
 
 But in the severe penalties attached to the Statutes of 
 Provisors and PrcBmunire may be read the steady determina- 
 tion of the English people to maintain an independent 
 National Church, and to resist the ultramontane doctrines 
 which had taken root in some other countries. 
 
 The Statute of Provisors (25th Edw. Ill, St. 6., A.D. 
 1350) recites that "the Holy Church of England" was 
 founded in the " estate of prelacy within the realm of 
 England " by the 'King and nobles of England, and forbids 
 the prevalent abuses of the Pope's bestowing benefices upon 
 aliens, " benefices of England which be of the advowry of 
 '^ the people of Holy Church," the reservation of first-fruits 
 to the Pope, and the provision or reservation of benefices to 
 
 * Phillimore's iDternational Law, Vol. 2. pp. 412. 416.
 
 32 
 
 Kome. By 38th Edward III., St. 2., c. 1. (A.D. 1163), 
 persons receiving citations from Rome in courts pertaining 
 to the King, &c., are liable to the penalty of 25th Edw. III. 
 
 The Statute (A.D. 1392) 16 Richard II. c. 5. renders the 
 procuring of BuUs from Rome liable to prcemunire, and it 
 recites a variety of Papal aggressions upon the privileges of 
 the Crown; among other matters, as to the translation of 
 Bishops out of the realm, or from one bishopric to another 
 within the realm ; and the carrying of treasure out of the 
 realm ; and so the realm, destitute as well of counsel, as of 
 substance, to the final destruction of the said realm, and so 
 the Crown of England, which hath been so free at all times 
 that it hath been in no earthly subjection, but immediately 
 subject to God in all things touching the regality {la regalie) 
 of the same Crown, and to none other, should be submitted 
 to the Pope, and the laws and statutes of the realm by him 
 defeated and avoided at his will, in perpetual destruction 
 of the sovereignty of the kingdom of the King and Lord, his 
 Crown, his royalty, and of all his realm, which God defend. 
 
 This statute before the Reformation, and the subsequent 
 enactment of 24 Henry VIII. c. 12., and the great case of 
 Cawdry* as reported by Lord Coke and corrected by Bishop 
 Stillingfleet, may be said to contain a treatise on constitutional 
 law of England upon the subject of the usurpation of the 
 Papal See upon the liberties of the National Church, and 
 in regard to the authority and privilege of the English 
 Crown. It would be difficult to conceive a clearer or more 
 dignified exposition of the law upon this subject than is 
 contained in the prefatory part of the statute of Henry VIII. 
 " Where by divers sundry old authentick histories and 
 " chronicles it is manifestly declared and expressed, that 
 " this realm of England is an empire, and so hath been 
 " accepted in the world, governed by one supreme head and 
 " king, having the dignity and royal estate of the imperial 
 " Crown of the same, unto whom a body politic, compact 
 " of all sorts and degrees of people, divided in terms, and 
 '' by names of spiritualty and temporalty, been bounden 
 " and owen to bear next to God a natural and humble 
 " obedience ; he being also institute and furnished, by the 
 " goodness and sufferance of Almighty God, with plenary, 
 '* whole, and entire power, pre-eminence, authority, pre- 
 '^ rogative, and jurisdiction, to render and yield justice, and 
 " final determination to all manner of folk, resiants, or 
 ^' subjects within this his realm, in all causes, matters, 
 " debates, and contencions, happening to occur, insurge, 
 
 * 3 Coke, 1. Stillingfleet's Eccles. Cases, " Of the Foundation of Eccle- 
 siastical Jurisdiction," Vol. 2. p. '19.
 
 33 
 
 " or begin within the limits thereof, without restraint or 
 *^ provocation to any Foreign Princes or Potentates of the 
 " world; the body spiritual whereof having power, when 
 " any cause of the law divine happened to come in question, 
 " or of spiritual learning, then it was declared, interpreted, 
 '^ and showed by that part of the said body politic called 
 " the spiritualty, now being usually called the English 
 '^ Church, which always hath been reputed, and also found 
 " of that sort, that both for knowledge, integrity, and 
 " sufficiency of number, it hath been ahvays thought, and 
 " is also at this hour sufficient, and meet of itself, Avithout 
 " the intermeddling of any exterior person or persons, to 
 " declare and determine all such doubts, and to administer 
 " all such offices and duties as to their rooms spiritual doth 
 " appertain ; for the due administration whereof, and to 
 " keep them from corruption and sinister affection, the 
 " King's most noble progenitors, and the antecessors of 
 '^ the nobles of this realm, have sufficiently endowed the 
 *^ said Church both with honour and possessions ; and the 
 *' laws temporal for trial of property of lands and goods, 
 " and for the conservation of the people of this realm in 
 *^ unity and peace, without rapine or spoil, was and yet is 
 " administered, adjudged, and executed by sundry judges 
 " and ministers of the other part of the said body politic, 
 " called the temporalty ; and both their authorities and 
 " jurisdictions do conjoin together in the due administra- 
 •■' tion of justice, the one to help the other." 
 
 At the period of the Reformation the National Church 
 introduced an express denial of the authority of the Pope, — 
 henceforth called in all public acts and documents the Bishop 
 of Kome, — into her articles and canons, and an acknowledg- 
 ment of the temporal supremacy of the Crown over the 
 ecclesiastical as well as the civil state. Plenry YIII. was 
 excommunicated, and in the Bull his subjects were com- 
 manded to renounce their allegiance, and the nobles were 
 ordered " sub ejusdem excommunicationis ac perditionis 
 " bonorum suorum poenis," to unite with all Christian 
 princes in expelling Henry from England. Elizabeth was 
 excommunicated in pretty similar terms, but not until twelve 
 years after her accession. In answer to a request from the 
 Emperor and other Roman Catholic princes, that she would 
 allow the Roman Catholic places of worship, she replied that 
 she would not allow them to keep up a distinct communion, 
 alleging her reasons in these remarkable words, " for there 
 " was no new faith propagated in England ; no religion set 
 " up but that which was commanded by Our Saviour, prac- 
 " tised by the primitive Church, and unanimously approved 
 
 c
 
 34 
 
 " by the fathers of the best antiquity." The E-oman Catho- 
 lics, both in England and Ireland, appear to have outwardly 
 conformed to the services of the Church for about ten years. 
 
 The peculiar character of the English people and the 
 English Church, is also strongly shown in their determination 
 not to admit the general body of the Canon Law into these 
 realms, but only such portions of it as were consistent with 
 the Constitution, the Common Law, and the peculiar usages of 
 the Anglican Church. The rules of the general Canon Law 
 were principally introduced into this country, and consider- 
 ably modified in their introduction through the medium of 
 provincial constitutions passed by the authority of the 
 Metropolitans of England. It is true that the Pope endea- 
 voured to maintain his authority in this matter by sending 
 legates from time to time, and by the device of creating the 
 Archbishop of Canterbury "legatus natus" of the Holy See.* 
 But England possesses in her provincial constitutions, col- 
 lected by Lyndewode, a body of domestic ecclesiastical law, 
 upon which, before the Keformation, a national independent 
 character was in many respects impressed. The common 
 law was always disposed to recognize these constitutions, 
 while to the general canon law it always manifested con- 
 siderable averseness. 
 
 But it has always been the doctrine of the temporal and 
 ecclesiastical courts since the Reformation that the consti- 
 tutions contained in Lyndewode, and the general usages of 
 the Church, and certain portions of the canon law admitted 
 by those usages, are still binding upon the Church of this 
 realm. 
 
 I will give some instances : 
 
 So late as the year 1848 criminal articles were preferred 
 against a clerk in holy orders for accepting a benefice with 
 cure of souls whilst in possession of another benefice with a 
 cure of souls without dispensation. The articles alleged 
 that by the 29th canon of the 24th Council of Lateran, 
 A.D. 1215, he was ipso jure deprived of the first living. Sir 
 H. Jenner Fust observed " The first of the articles sets 
 " forth the law, namely, that by a decree of the Council of 
 " Lateran, when any person in possession of a benefice with 
 '^ cure of souls shall accept another like benefice, the former 
 
 * " Thus much is evident, as Gervasius, in the life of William, at this time 
 " (anno 1125) Archbishop of Canterbury, well observes, that the legatine 
 " power was looked upon as a breach of the law of England, and an invasion 
 " of the ancient liberties of the English Church and Nation, as well as the 
 " rights of the Sees of Canterbury and York in particular, and that the minds 
 " of men were scandalized and offended at it." — Inett's " Origines Anglicanae," 
 Vol. II. p. 223.
 
 35 
 
 " becomes void, tliat is, he loses that benefice, and that is 
 " the law of this country at this time. The Statute of 
 " Henry YIII, does not affect this law, except that it makes 
 " the other living voidable ; that is, by sentence, or void 
 " by presentation of the patron." 
 
 % % % ^ 
 
 " Under these circumstances, the facts being proved, the 
 " Court is bound to sign a sentence, declaring the perpetual 
 " curacy of Forest Hill void by Mr. Mavor's acceptance of 
 " another benefice with cure of souls." 
 
 In the case of Saunders v. Head (3 Curteis's Eep. 577,) 
 Sir Herbert Jenner Fust, said, " It has been made a subject 
 " of complaint, on behalf of Mr. Head, that the articles do 
 *^ not contain any specification of the law relied on to 
 " establish them; that the first article is merely general, 
 *^ and that, under such general pleading it is difficult for a 
 " defendant to know how to address himself to the question 
 '' of law applicable to his case; that the Canon law has 
 " been referred to P-enerally without particular specification." 
 ^ ^ -x- , ■?{• 
 
 (p. 579)— 
 
 " Now the objection taken in this case is not taken for 
 " the first time, it has been frequently taken in this Court, 
 " and, as often, overruled. The answer always given to the 
 " objection is, that where the general law ecclesiastical is 
 " relied on, it is not necessary to plead specifically ; that 
 " where the offence is one generally cognizable in the 
 " Ecclesiastical Court it is not necessary to point out the 
 " particular Canon or Statute on which the proceedings are 
 " founded." 
 
 In the case of Kemp v. Wickes, Sir John Nicholl said, — 
 " The law of the Church of England, and its history are 
 " to be deduced from the ancient general Canon law, from 
 " the particular constitutions made in this country to regu- 
 " late the English Church, from our own Canons, from 
 " the rubric, and from any Acts of Parliament that may 
 " have passed upon the subject; and the whole may be 
 ^' illustrated, also, by the writings of eminent persons." — 
 (Kemp V. Wickes, 3 Phillimore's Rep. 276.) 
 
 In the year 1866 a Royal licence was granted to Convoca- 
 tion to alter certain Canons of 1603 ; the licence recited the 
 25th of Hen. VIII. c. 29. restraining the meeting of Con- 
 vocation, and continued as follows: — 
 
 " And further, by the said Act it is provided that no 
 " canons, constitutions, or ordinance should be made or 
 " put in execution within this realm, by authority of the 
 
 c 2
 
 36 
 
 " Convocation of tlie Clergy, which shall be contrariatit or 
 " re[)Ugnant to the Kmg's prerogative royal, or the custom?, 
 " laws, or statutes of this realm, anything in the said Act to 
 " the contrary thereof notwithstanding ; and, lastly, it is 
 '^ also provided by the said Act that such Canons, Constitu- 
 " tions, Ordinances, and Synodals provincial which then 
 " were already made, and Avhich were not contrary or re- 
 " pugnant to the laws, statutes, and customs of this realm, 
 '- nor to the damage or hurt of the King's prerogative royal, 
 " should then still be used and executed as they Avere upon 
 '^ making of the said Act, till such time as they should be 
 ^^ viewed, searched, or other\vise ordered and determined by 
 " the persons mentioned in the said Act, or the more part 
 '^ of them, according to the tenor or form and effect of the 
 " said Act, as by the said Act amongst divers other things 
 " more fully and at large it doth and may appear." 
 
 B. — Historical and Theological Statements as to Identity, 
 
 Having ma'^le these observations with regard to the 
 connection that subsists between the law as to the Church 
 before and after the Reformation, I will now advert to the 
 evidence of identity furnished by our history and theology 
 since the Reformation. 
 
 In 1^49, Edward the Sixth's government in their message 
 to the Devonshire rebels state, '^ It seemeth to you a new 
 ^' service, and indeed is none other but the old; the self-same 
 " words in English which were in Latin, saving a few things 
 '-' taken out." * 
 
 Constant references are made in the Homilies, which 
 were produced under the auspices of Cranmer early in die 
 reign of Edw^ard VI., to the '^usages of the ])rimitive 
 " Church," and the ^'sentences and judgements of the most 
 *^ ancient, learned, and godly doctors of the Church." 
 
 Collier, t speaking of the various influences at work 
 during this reign, says, " Peter Martyr concurred with Bucer 
 " in his animadversions upon the Common Prayer Book, as 
 " appears by his letter to him upon that subject. 
 
 ^' Hovrever, from what has been observed, the reader 
 " may perceive Bucer was somewhat overcharged with 
 *^ scruples, and carried his censure too far. Neither are his 
 '' remarks at all reconcilcable with his concessions in the 
 " beginning of his discourse. And, amongst other things, his 
 " setting aside antiquity with so much ease is particularly 
 
 * Toxe, Acts and Mon., v. p. 734. Note to Procter on the Eook of 
 Common Prayer, p. 25, 2G. 
 
 t Ecclesiastical History of Great Britain, Vol. V., Book IV., p. 40G.
 
 37 
 
 " remarkable. There is a great deference, without doubt, 
 " due to the authority of the first centuries. It was 
 " then the apostolical traditions were fresh, miracles were 
 " frequent, and the Church under the conduct of a distin- 
 '' guishinf^ illumination. Then secular views and projects 
 " of ambition were foreign to inclination. Under such 
 *^ opportunities and qualifications what room is there for 
 *' suspicion of ignorance or foul dealing. To reject the 
 ^' usages of the ancient Church, because we do not meet 
 " with them in Scripture, is no good logic. It is plainly 
 " not the design of the New Testament to furnish liturgies 
 ^' and rituals. The converts to St. Peter's sermon continued 
 " stedfastly in breaking of bread ;± that is, administering the 
 " Holy Eucharist ; and in prayers. But v/hat the prayers 
 " were at this solemnity is nowhere delivered in Scripture. 
 *^ Where the extraordinary effusions of the Holy Ghost 
 " were not supplied, things of this nature were left to the 
 " discretion of the spiritual directors, who were to govern 
 " themselves by St. PauFs general rule, ^ Let all things be 
 " done decently and in order.' (1 Cor. xiv.) 
 
 ^^ It is true, if the religious customs of antiquity were 
 " plainly inconsistent with the doctrine of the inspired 
 " writings, we ought to stand ofl' from them ; but in other 
 " cases our Saviour's saying is applicable to the present 
 " purpose, ^ He that is not against us, is for us.' And 
 " wdien the governors of the Church are under no restraint 
 " as to ceremonies and compositions, Avhat should hinder 
 '^ them from following their judgements, and directing as 
 " they think fit ? ^ For where there is no law, there can be 
 '' no transgression.' Yfhat should hinder them in this case 
 " from enlarging the circumstances of worship, from 
 " assisting the memory, raising the affections, and explaining 
 " the mysteries, with additional ceremonies and devotions ? 
 
 " His objection against primitive usages, because they 
 " have been overvalued and misapplied by the Church of 
 " Rome, goes upon a mistaken ground ; for, granting the alle- 
 *^ gations hold good, there is no consequence in the reuson- 
 " ing. To argue from the abuse against the use of things 
 " is the way to take our bibles from us ; for what book has 
 " been mere abused than the inspired text ? By this topic 
 " almost everything in religion and nature must be con- 
 ^' traband and prohibited. Bucer was formerly sensible of 
 ^^ this fallacy ; he saw the danger of disputing at this rate, 
 " and determines against it. To quit antiquity in any 
 " custom because it is continued in the Church of Eonie 
 " has neither reason nor charity in it. It is a peevish 
 
 X Acts ii. 42.
 
 38 
 
 '^ principle, and helps to keep tip a spirit of division. We 
 " ought rather to lament the breaches in the Church than 
 " make them wider. All reproachful language, huraoursome 
 " distance, and unnecessary squabbles, serve only to exaspe- 
 " rate one part of Christendom against another, and make 
 '^ our common religion the jest of infidels and atheists.'' 
 
 The same author * thus introduces the subject of the 
 apology of Jewel, which is referred to in the 36th of the 
 Canons of 1603. 
 
 The next remarkable occurrence is Bishop Jewel's sermon 
 at Paul's Cross. It was preached in Lent this year upon 
 these words of the apostle Paul, " I have received of the 
 " Lord that which also I deliver unto you." From this text 
 he took occasion to make that remarkable challenge in 
 defence of the Reformation. The Church of England was 
 reproached with novelty by the Papists, and charged with 
 departing from primitive doctrine and practice. To wipe off 
 these aspersions the Bishop put the case upon a bold issue, 
 and declared in the pulpit, " That if any learned men of all 
 " our adversaries, or if all the learned men that are alive, 
 '^ are able to bring any one sufficient sentence out of any 
 " old Catholic doctor or father, or out of any general 
 '^ council, or out of the Holy Scriptures of God, or any one 
 ^^ example of the primitive Church, whereby it may be 
 " plainly and clearly proved that for the six hundred years 
 *^ after Christ there was any private mass in the world; or that 
 " there was any communion administered under one kind ; 
 " or that the people had their common prayer in a language 
 " which they did not understand ; or that the Bishop of 
 " Rome was then called universal bishop or head of the 
 " universal church ; or that the people were then taught to 
 '' believe that Christ's body is really, substantially, corporally, 
 '^ carnally, or naturally in the sacrament," &c. &c. 
 
 " If any one of his advei'saries were able to make good but 
 " a single proposition amongst all these, either by sufficient 
 " declarations in Scripture, or by the testimony of the 
 *^ ancient fathers and councils, he was ready to give up the 
 " contest and subscribe himself a proselyte." 
 
 It is not unworthy of remark that in the Canon of 1571, 
 concerning preachers, it is ordered, *^ In primis videbunt 
 " concionatores, nequid unquam doceant pro concione quod 
 '^ a populo religiose teneri et credi velint, nisi quod consen- 
 " taneum sit doctrinse Veteris aut Novi Testamenti, quodque 
 '' ex ilia ipsa doctrina Catholici patres et veteres episcopi 
 *' collegerint." 
 
 '^ Collier's Ecclesiastical History, Vol. 6,, page 303.
 
 39 
 
 The Puritans did not dispute the lawfulness of set forms 
 of prayer, but they were to be such as were used in Geneva 
 and Scotland {NeaWs History, p. 236. Madox, p. 78.) But 
 Bishop Burnet observes, speaking of the year 1548*: " It being 
 '^ resolved to bring the whole worship of God under set forms ; 
 ^^ they (our Reformers) set one general rule to themselves 
 " (which they afterwards declared) of changing nothing for 
 " novelty's sake, or merely because it had been formerly 
 " used. They resolved to retain such things as the primitive 
 " Church had practised, cutting off such abuses as the latter 
 " ages had grafted on them, and to continue the use of such 
 *' other things which, though they had been brought in not 
 *^ so early, yet were of good use to beget devotion, and were 
 *' so much recommended to the people by the practice of 
 " them that the laying aside these would, perhaps, have 
 '^ alienated them from the other changes they made ; and, 
 " therefore, they resolved to make no change without very 
 ^* good and weighty reason. In which they considered the 
 '^ practice of our Saviour, who did not only comply with 
 '^ the rites of Judaism himself, but even the prayer he gave 
 '* to his disciples' was framed according to their forms ; and 
 '' his two great institutions of Baptism and the Eucharist 
 *^ did consist of rites that had been used among the Jews ; 
 *^ and since he who was delivering a new religion, and was 
 '' authorized in the highest manner that ever any was, did 
 *' yet so far comply with received practices as from them to 
 ^' take those which he sanctified for the use of his Church, 
 " it seemed much fitter for those who had no such extra- 
 " ordinary warrant to give them authority in what they did, 
 ^' when they were reforming abuses, to let the world see 
 ^^ they did it not from the wanton desire of change or any 
 '^ affectation of novelty, and with those resolutions they 
 *^ entered on their work.'' 
 
 I now approach an authority to which almost universal 
 homage has been accorded, — the authority of Hooker.t 
 
 ^' They," he says, " which measure religion by dislike of the 
 " Church of E/Ome think every man so much the more sound 
 *^ by how much he can make the corruption thereof to seem 
 " more large ; and, therefore, some there are, namely, the 
 '' Arians in reformed churches of Poland, which imagine 
 " the canker to have eaten so far into the very bones and 
 *' marrow 'of the Church of Rome as if it had not so much 
 *' as a sound belief, no not concerning God himself, but that 
 '^ the very belief of the Trinity were a part of antichristian 
 
 * History of Reformation, Vol. 2, page 150. 
 f Hooker, Book IV., Chap. VIII.
 
 40 
 
 " corruption ; and that the wonderful providence of God 
 " did brini^ to pass that the bishop of the see of Kome 
 " should be famous for his triple crown, — a sensible mark 
 " whereby the world might know him to be that mystical 
 " beast spoken of in the Eevelation, to be that great and 
 " notorious antichrist in no one respect so much as in this, 
 " that he maintaineth the doctrine of the Trinity. Wisdom 
 " therefore and skill is requisite to know what parts are 
 ^* sound in that church and what corrupted. 
 
 *^ Neither is it to all men apparent which complain of 
 " unsound parts, with what kind of unsoundness every such 
 " part is possessed. They can say, that in doctrine, in 
 *^ discipline, in prayers, in sacraments, the Church of Rome 
 '' hath (as it hath indeed) very foul and gross corruptions, 
 " the nature whereof, notwithstanding because they have 
 *' not for the most part exact skill and knowledge to discern, 
 *' they think that amiss many times which is not ; and the 
 « salve of reformation they mightily call for, but when and 
 *^ what the sores are which need it, as they wot full little, 
 *' so they think it not greatly material to search. 
 « • . . . . . • • • »^* 
 
 '« * That the Church of Rome doth liereby take occasion 
 '« to blaspheme, and to say our religion is not able to stand 
 " of itself unless it lean upon the staff of their ceremonies, is 
 '' not a matter of so great moment that it need to be 
 " objected, or doth deserve to receive an answer. The name 
 " of blasphemy in this place is like the shoe of Hercules 
 *' on a child's foot. If the Church of Rome do use any such 
 *' kind of silly exprobation, it is no such ugly thing to the 
 *' ear that we should think the honour and credit of our 
 *^ religion to receive thereby any great wound. They which 
 " hereof make so perilous a matter do seem to imagine that 
 *^ we have erected of late a frame of some new religion, the 
 '^ furniture whereof we should not have borrowed from our 
 *' enemies, lest they relieving us might afterwards laugh and 
 " gibe at our poverty; whereas in truth the ceremonies 
 " which we have taken from sucli as were before us are not 
 ** things that belong to this or that sect, but they are the 
 " ancient rites and customs of the'^Church of Christ, whereof 
 " ourselves being a part, we have the selfsame interest in 
 *' them which our fathers before us had, from Avhom the 
 " same are descended unto us. ..... . 
 
 *' . . .......•• 
 
 '' No man which is not exceeding partial can well deny but 
 " that there is most just cause wherefore we should be 
 
 * Hooker, Book IV., Chap. IX.
 
 41 
 
 " offended greatly at the Church of Kome. Notwithstanding 
 *' at such times as we are to deliberate for ourselves, the 
 '' freer our minds are from all distempered affections the 
 *^ sounder and better is our judgement. When we are in a 
 '* fretting mood at tlie Church of Rome, and with that 
 " angry disposition enter into any cogitation of the orders 
 " and rites of our Church, taking particular survey of them, 
 *^ we are sure to have always one eye fixed upon the 
 *' countenance of our enemies, and according to the blithe 
 *' or heavy aspect thereof our other eye showeth some 
 *' other suitable token either of dislike or approbation 
 " towards our own orders. For the rule of our judgement 
 " in such case being only that of Homer, ' This is the 
 " thing which our enemies would have,' what they seem 
 " contented with, even for that very cause we reject ; and 
 '^ there is nothing but it pleaseth us much the better if we 
 " espy that it galleth them. 
 
 " Miserable were the state and condition of that Church 
 " the weighty affairs whereof should be ordered by those 
 " deliberations wherein such a humour as this were pre- 
 " dominant. We have most heartily to thank God, 
 *' therefore, that they amongst us to whom the first consul- 
 " tations of causes of this kind fell were men which aiming 
 " at another mark, namely, the glory of God and the good 
 *' of this His church, took that which they judged thereunto 
 *^ necessary, not rejecting any good or convenient thing 
 «* only because the Church of Kome might perhaps like it.'' 
 
 The Puritans at the Hampton Court Conference in the 
 reign of James the First vehemently objected to the sign of 
 the Cross in the sacrament of Baptism, and the reply 
 to their objections incorporated in the thirtieth canon (of 
 1603) deserves the careful study of those who would 
 thoroughly understand the mind of the Enghsh Church 
 upon the subject now under consideration : 
 
 " t So that for the very remembrance of the Cross, which 
 " is very precious to all of them that rightly believe in 
 " Jesus Christ, and in the other respects mentioned, the 
 " Church of England hath retained still the sign of it in 
 '' Baptism, folio-wing therein the primitive and apostolical 
 " Churches. And this use of the sign of the Cross in Baptism 
 *' was held in the primitive Church, as well by the Greeks 
 " as the Latins, with one consent and great applause. At 
 *' what time, if any had opposed themselves against it, 
 " they would certainly have been censured ns enemies of 
 " the name of the Cross, and consequently of Christ's merits, 
 
 f Canon 30. (The lawful use of the Cross in Baptism explained.)
 
 42 
 
 ** the sign whereof they could no better endure. This 
 '' continual and general use of the sign of the Cross is 
 ** evident by many testimonies of the ancient fathers. 
 
 " It must be confessed that in process of time the sign of 
 " the Cross was greatly abused in the Church of Kome, 
 " especially after that corruption of popery had once pos- 
 '^ sessed it. But the abuse of a thing doth not take away 
 *' the lawful use of it. Nay, so far was it from the purpose 
 " of the Church of England to forsake and reject the 
 '^ Churches of Italy, France, Spain, Germany, or any such 
 " like Churches in all things which they held and practised, 
 " that, as the apology of the Church of England confesseth, 
 " it doth with reverence retain those ceremonies which doth 
 ^' neither endamage the Church of God, nor offend the minds 
 " of sober men, and only departed from them in those 
 '' particular points wherein they were fallen both from 
 " themselves in their ancient integrity, and from the apos- 
 " tolical Churches which were their first founders." 
 
 Dr. Jackson who was President of Corpus Christi College 
 and Dean of Peterborough, one of om- most learned divines, 
 writing A.D. 1629, in his treatise of the Holy CathoHc 
 Faith and Church, says,* " That the title of Catholic is 
 " proper and essential unto the faith professed by the present 
 *^ visible Church of England, but cannot truly be attributed 
 *' to the faith or creed of the modern visible Romish 
 '' Church. 
 
 '^ Whether the name Catholic were first bestowed upon 
 *' the Church, or upon that faith which is the life and soul 
 " of the Holy Apostolic Church, shall be no part of our 
 " inquiry. It sufficeth that the name Catholic itself is 
 " univocal in respect both of Church and faith. True faith 
 *' is therefore Catholic faith because it is the only door or 
 *^ way unto salvation, alike common unto all, without 
 " national or topical respect. Whosoever of any nation 
 ** have been saved have been saved by this one and the same 
 " faith, and whoever will be saved (as Athanasius speaks) 
 '* must hold this Catholic faith, and he must hold it pure 
 " and undefiled. The main question then is, who they be 
 " that hold this Catholic faith, and whether they hold it 
 " undefiled or no. Were Vincentius' rules as artificial as 
 " they are orthodoxal and honest, the issue betwixt us and 
 " the Romanist would be very easy and triable. But let us 
 " take them as they are: * Id Catholicum est quod ab 
 " omnibus ubique et semper, etc' ' That is Catholic which 
 *' is held by all, in all places, and at all times.' 
 
 * Works, Vol. XII. Chap. 21, p. 161, ed. 1845.
 
 43 
 
 '' The three special notes of the Catholic faith or church 
 •^ by him required are universality, antiquity, and consent. 
 '* Whether these three members be different or subordinate, 
 ^^ and ofttimes coincident I leave it to be scanned by 
 '' logicians. According to the author's limitation, all three 
 ^^ marks ao-ree to us, not to the Romanist/' 
 
 " The fallacy by which the Romanists deceive poor simple 
 " people is in making them believe that our religion and 
 " their religion, our faith and their faith, are duo prima 
 " diversa, or so totally distinct that part of the one coidd 
 " not be included in the other. But for the universality of 
 " our faith we have every member of the Romish Church a 
 " suffragant or witness for us. First, nothing is held as a 
 " point of faith in our Church but the present Romish 
 " Church doth hold the same, and confess the same to have 
 " been held by all orthodoxal antiquity. So that for the 
 ''form of faith established in our Church, we have the 
 " consent of the primitive Church, of the four first general 
 " councils, of all succeeding ages unto this present day, the 
 " consent likewise of the present Romish Church, and of 
 " ourselves. Now, as France is a great deal bigger than 
 *' Normandy, if we compare them as distinct and opposite, 
 *' and yet France and Normandy is bigger than France 
 " without Normandy, so hkewise though the present visible 
 '^ Romish Church be much greater than the Church of 
 *' England, yet seeing the Romish Church, how great soever, 
 " doth hold all the points of faith which our Church 
 " doth for catholic and orthodoxal, our consent and their 
 " consent, our confession and their .confession, is more uni- 
 " versal than their consent without ours. But if their 
 " consent unto the points of faith believed by us prove our 
 " faith to be universal, and our Church by consequence to 
 " be catholic, why should not our consent unto the points 
 " of faith beheved by them prove their faith to be universal, 
 " or their Church to be catholic ? Because it is not enough 
 " to hold aU points of Catholic faith, unless the same points 
 " be kept holy and undejiled. The Romish Church, we grant, 
 *' doth hold all points of Cathohc faith, and so far as she 
 " hold these points we dissent not from her ; yet dissent 
 " from her we do in that she hath defiled and polluted the 
 " Catholic faith with new and poisonous doctrines, for which 
 '« she neither hath the consent of antiquity, nor of reformed 
 *^ churches." 
 
 And again, answering that silly taunt of the Romanists, 
 " Where was your Church before the Reformation T he 
 observes : *^ The question is much the same as if they should
 
 44 
 
 ask us, where was King Henry the Seventh's kingdom, 
 where were his subjects, where was your commonweal 
 Avhilst Richard the Third did call parliaments, and sway 
 the sceptre of this kingdom ? The kingdom of Henry the 
 Seventh and of his successors, or the English common- 
 weal, was in the same place then as now it is. The depo- 
 sition of the tyrant, the dissolution of the tyranny, and. 
 the reducing of English subjects to their true allegiance, 
 did work no essential alteration in the commonweal of 
 the kingdom, but only a reformation of the government, 
 and reducement of it to the fundamental laws of the 
 land. 
 
 " No more did the rejection of the Komish Church's 
 usurped authority in matters spiritual induce any sub- 
 stantial alteration in the English Church, but a reforma- 
 tion or reduction of it unto the fundamental constitution of 
 the primitive Church."* 
 In the warrant issued by Charles 11. for the conference 
 at the Savoy, which preceded the adoption of our present 
 Prayer Book (Cardwell's Conferences, p. 300), a commission 
 of certain persons is appointed to advise upon and review the 
 said Book of Common Prayer, comparing the same with the 
 most ancient liturgies which have been used in the Church 
 in tlie primitive and purest times. 
 
 So careful were the compilers of this great treasure of the 
 Church that it should speak the Catholic language, to which 
 Christian ears and hearts had been accustomed, while the 
 apostolical spirits and doctrine still guided the undivided 
 Church. 
 
 Hear on this subject the erudite and eloquent Donne : " If 
 " they (the Roman Catholics) say, we are perplexed with 
 " differences of opinions amongst ourselves, let this satisfy 
 " them, that we do agree all in all fundamental things ; and 
 " that in things much nearer the foundation than those in 
 *' which our differences lie they differ amongst themselves, 
 " with more acrimony and bitterness than we do. If they 
 " think to perplex us with the fathers, we are ready to join 
 " that issue with them; where the fathers speak unanimously, 
 " dogmatically, in matters of faith, we are content to be 
 *' tried by the fathers. If they think to perplex us with 
 *' councils, we will go as far as they in the old ones ; and, 
 " as far as they for meeting in new councils, if they may be 
 " fully, that is, royally, imperially, called, and equally pro- 
 ** cccded in, and the resolutions grow and gathered there 
 " upon debatements, upon the place, and not brought thither 
 
 * Vol. 12,, p. 131.
 
 45 
 
 '' upon commandment from Rome." — Donne s Works, 
 vol. iii. p. 11. 
 
 Bishop Cosin, an authority of special significance and 
 weight, because he largely assisted in the compilation of our 
 Prayer Book,^ says : " In truth we have continued the old 
 " religion ; and the ceremonies which we have taken from 
 " them that were before us are not things which belong to 
 ^' this or that sect, but they are the ancient rites and 
 " customs of the Church of Christ, whereof ourselves being 
 " a part, we have the selfsame interest in them which our 
 " fathers before us had, from whom the same descended to 
 " us. To abrogate those things without constraint of appa- 
 " rent harm thence arising had been to alter unjustly the 
 ** universal practice of the people of God and tb.ose general 
 " decrees of the fathers, which (in St. Augustin's language) 
 " is madness and insolence to do, both in respect of the 
 " universal authority of the Church, which no particular 
 " Church has power to control, and also in regard of reasons 
 *' before mentioned." 
 
 Archbishop Bramhall, who wrote in 1677 his "Just 
 " Vindication of the Church of England," &c., says : " But 
 *^ it is not enough to charge the court of Rome unless we 
 " can discharge ourselves, and acquit our own Church, of the 
 " guilt of schism which they seek to cast upon us. First, 
 " they object that we have separated ourselves schismatlcally 
 " from the communion of the Catholic Church. God 
 " forbid ! Then we will acknowledge, without any more to 
 *^ do, that we have separated ourselves from Christ, and all 
 " His holy ordinances, and from the benefit of His passion, 
 *^ and all hope of salvation. 
 
 " But the truth is, we have no otherwise separated our- 
 " selves from the communion of the Catholic Church than 
 " all the primitive orthodox fathers, and doctors, and churches 
 " did long before us, that is, in the opinion of the Donatists, 
 ^' as we do now in the opinion of the Romanists ; because 
 " the Romanists limit the Catholic Church now to Rome in 
 " Italy, and those Churches that are subordinate to it, as 
 " the Donatists did then to Cartenna in Africa, and those 
 " Churches that adhered to it. We are so far from separating 
 " ourselves from the communion of the Catholic Church 
 '' tliat we make the communion of the Christian Church to 
 " be thrice more cathohc than the Romanists themselves 
 " do make it, and maintain communion with thrice so many 
 '« Christians as they do. By how much our Church should 
 *^ make itself, as the case stands, more Roman than it is, by 
 
 * Preface to his Notes on the Common Prayer.
 
 46 
 
 *^ so much it should thereby become less catholic than it is." 
 — {Works, folio, Dublin, Chap. IX.) 
 
 " As for my religion," said the holy Ken, with almost 
 his latest breath, " I die in the holy catholic and apostolic 
 " faith, professed by the whole Church before the disunion 
 '* of east and west ; more particularly I die in the commu- 
 " nion of the Church of England, as it stands distinguished 
 " from all papal and puritan innovations, and as it adheres 
 " to the doctrine of the Cross." 
 
 Bishop Beveridge compiled, with infinite labour and accu- 
 racy, a Codex Canonum EcclesicB Prirnitivce vindicatus ac illus- 
 tratus: — in his preface to which are these words (s. 6.), ''For 
 " when this our English Church, through long communion 
 '^ with the Roman Church, had contracted like stains with 
 " her, from which it was necessary that it should be cleansed, 
 '' they who took that excellent and very necessary work in 
 " hand, fearing that they, like others, might rush from one 
 " extreme to the other, removed indeed those things, as 
 '' well doctrines as ceremonies, which the Roman Church 
 ^' had newly and insensibly superinduced, and, as was fit, 
 *' abrogated them utterly. Yet notwithstanding whatsoever 
 " things had been at ail times believed and observed by 
 " all Churches in all places, those things they most re- 
 *' ligiously took care not so to abolish with them. For they 
 " well knew that all particular Churches are to be formed 
 " on the model of the Universal Church, if indeed, accord- 
 " ing to that general and received rule in ethics ' every part 
 '^ which agreeth not with its whole is therein base.' Hence, 
 *' therefore, these first reformers of this particular Church, 
 '^ directed the whole line of that reformation which they 
 ^' undertook, according to the rule of the whole or Universal 
 •' Church, casting away those things only which had been 
 " either unheard of, or rejected by the Universal Church, 
 " but most religiously retaining those which they saw, on 
 " the other side, corroborated by the consent of the Uni- 
 '^ versal Church. Whence it hath been brought to pass, 
 " that although we have not communion with the Roman, 
 " nor with certain other particular Churches, as at this day 
 " constituteil, yet have we abiding communion with the 
 " Universal and Catholic Church, of which evidently ours, 
 " as by the aid of God first constituted, and by his pity still 
 ^' preserved, is the perfect image and representation." 
 
 Observe how Barrow speaks in his Treatise on the Pope's 
 Supremacy of the Council of Trent. "This new creed," he 
 says, " of Pius IV. containeth these novelties and hetero- 
 «' doxies ; (1) Nine sacraments; (2) Trent doctrines of jus- 
 «' tification and original sin ; (3) Propitiatory sacrifice of the
 
 r^7 
 
 " mass; (4) Transubstantiation ; (5) Communicating under 
 " one kind; (6) Pm'gatory ; (7) Invocation of Saints; (8) 
 '^ Veneration of reliques ; (9) Worship of images ; (10) The 
 " Koman Church to be the mother and mistress of all 
 " Churches; (11) Swearing obedience to the Pope; (12) 
 " Receiving the decrees of all synods and of Trent. '^ 
 
 Bishop Sanderson"^ believed that " ^oW. men would be found 
 " much mistaken who account all Popery that is taught 
 '' or practised m the Church of Rome. Our godly 
 " forefathers, to whom (under God) we owe the purity 
 '* of our religion, and some of whom laid down their 
 '' lives for the defence of the same, were, sure, of another 
 " mind, if we may, from what they did, judge what they 
 '' thought. They had no purpose (nor had they any 
 " warrant) to set up a new religion, but to reform the old, 
 " by purging it from those innovations, which on tract of 
 " time (some sooner, some later) had mingled with it, and^ 
 *' corrupted it both in the doctrine and worship. According 
 " to this purpose they produced, without constraint or pre- 
 " cipitancy, freely and advisedly, as in peaceable times, and 
 " brought their intentions to a happy end, as by the results 
 " thereof contained in the articles and liturgy of our Church, 
 " and the prefaces thereunto, doth fully appear. From 
 " hence chiefly, as I conceive, we are to take our best scant- 
 *^ ling, whereby to judge what is, and what is not, to be 
 " esteemed Popery. All those doctrines then held by the 
 ^' modern Church of Rome, which are either contrary to 
 " the written Word of God, or but superadded thereunto 
 '' as necessary points of faith to be of aU Christians believed 
 ** under pain of damnation ; and all those superstitions 
 " used in the worship of God which are either unlawful as 
 ^' being contrary to the Word ; or being not contrary and 
 " therefore arbitrary and indifferent, are made essentials, 
 ^^ and imposed as necessary parts of worship : these are, 
 ** as I take it, the things whereunto the name of Popery 
 " doth properly and peculiarly belong. But as for the 
 '^ ceremonies used in the Church of Rome which the 
 '' Church of England at the Reformation thought lit to 
 " retain, not as essential or necessary parts of God's ser- 
 " vice, but only as accidental and mutable circumstances 
 " attending the same, for order, comeliness, and edification s 
 '^ sake ; how these should deserve the name of popish, I 
 " so little understand, that I profess I do not yet see any 
 " reason why, if the Church had then thought fit to have 
 " retained some other of those which were then laid aside, 
 
 ♦^ Died in 1663. f Preface to fourteen sermons.
 
 48 
 
 *' she might not lawfully have so done ; or why the things 
 " so retained should have been accounted popish. The 
 " plain truth is this : the Church of England meant to 
 *^ make use of her libert}^ and the lawful power she had (as 
 ^•' all the Churches of Christ have, or ought to have) of 
 *^ ordering ecclesiastical affairs here ; yet to do it with so 
 *' much prudence and moderation that the world might see 
 *^ by what wns laid aside, that she acknowledged no sub- 
 '^ jection to the See of Rome ; and by what was retained, 
 " that she did not secede from the Church of Rome out of 
 " any spirit of contradiction, but as necessitated there- 
 " unto for the maintenance of her just liberty. The 
 " number of ceremonies was also then very great and 
 ^^ thereby burdensome, and so the number thought fit to 
 *' be lessened. But for the choice which should be kept 
 " and which not, that was wholly in her power and at 
 ^ her discretion." 
 
 Bishop Smalridge, the accomplished friend of Addison, 
 wrote a sermon on the authority of the governors of our 
 Church, to prescribe rites and ceremonies (vol. 1, p. 145), 
 in the course of which he said : — 
 
 *^ But because those who allow some rites to be lawful 
 «' may entertain some doubts concerning the use of ours, as 
 '^ apprehending them to have some particular faults which 
 <' do not belong to all ceremonies in general, I shall proceed 
 *^ to clear those which we of this Church are required to 
 " observe, from such objections as are brought to prove 
 *' them unlawful and unwarrantable. Those who scruple 
 " the use of them allege it as one main ground of their 
 " scruples, that those ceremonies which are used in our 
 *^ Church are also used in the Church of Rome, and they 
 *^ are therefore cautious of observing them, lest they should 
 " thereby countenance the errors and corruptions of that 
 *' Churcli. Now this would be a good argument against 
 *' the usage of such rites, if it could be proved that those 
 ^' who err in some things do certainly err in everything ; 
 *^ or, that we ought to show our abhorrence of the corrup- 
 " tions of a Church by condemning and abolishing even 
 " those usages which liave nothing in them but what is 
 " innocent and incorrupt. But we have not declared war 
 " against those of that Church as they are Christians, but 
 " as they arc perverters of the Gospel of Christ ; we do not 
 *^ profess to differ from them in everything, but only in 
 " such things wherein we apprehend them to have degene- 
 " rated from the pure and undefiled Church of Christ. 
 
 *^ We think that we should not be able to vindicate our- 
 ** selves from the charge of schism, which they bring against
 
 49 
 
 " us, if whatever doctrine they held, whatever rite they 
 " practised, that we shoukl, for no other reason but because 
 " they held and practised it, forthwith condemn and reject. 
 
 " The ablest champions for the cause of the Eeformation 
 '' have always thought it the best answer against the charge 
 « of schism, to allege and prove that we have no further 
 " departed from them than they departed from the pure 
 '' and primitive Church of Christ. What is contrary to 
 " the purity of the Gospel, that we reject ; not because 
 " popish, but because repugnant to the laws and doctrines 
 '' of Christ: what is noways contradictory to the simplicity 
 " of the Gospel, what may be subservient to piety, that we 
 « retain ; not because practised by the Church of Rome, 
 " but because agreeable to the rules of the Gospel. If there 
 " be anything in our ceremonies that is sinful, they ought 
 "presently to be abolished, though there was nothing of 
 " the same kind practised by those of the Roman com- 
 " munion.* What is decent and laudable in them cannot 
 " lose its worth and value, because others have them in 
 " common with us. If it be laid down as a good rule of 
 '' reformation that we must depart as far as possible from 
 " Rome, we must renounce the articles of our creed, because 
 " they of that Church profess to believe them ; we must 
 « declare ourselves Socinians that we may be thought 
 " staunch Protestants ; and we must renounce the 
 « doctrine of the Trinity, because it is held by those who 
 " do also hold that of transubstantiation. In the Romish 
 " religion there are some things evil, some things good, 
 '' sonie things wholly indifferent. Whatever is sinful m 
 " that communion we are bound to reject, and have, we 
 " think, accordingly rejected; what is good we^ ought to 
 '<• retain, and therefore do retain ; what was indifferent, it 
 « was at the discretion of our reformers either to keep or 
 " change, as they thought should be more expedient. _ Pri- 
 " vate persons may, according to the variety of their judg- 
 " ments, think some things might have been kept which were 
 '' left off, or some things might have been dropped which 
 '' are still kept -, but unless they can prove those that ha,ve 
 *« been abolished to be necessary, or those that are reserved 
 " to be unlawful, they are bound quietly to submit to ^ the 
 '' abohtion of the former, and to the usage of the latter.' 
 
 Bishop Bull writing in 1705 on '^ The Corruptions of the^ 
 « Church of Rome, in answer to the Bishop of^Meaux 
 '« queries," thus maintains the true position of our Church : 
 
 * About this time Archbishop Tenisou >vrote a remarkable " Discourse of 
 Idolatry " (Chap.XIL, p. 279), and upon this principle vindicated the use ot 
 images and pictures in the Church of England.
 
 50 
 
 ^^ I proceed to the bishop's questions : He asks me what 
 " I mean by the Catholic Church ? I answer, What I mean 
 '' by the Catholic Church, in the book, which he all along 
 " refers to, I have already shown, and the very title of the 
 *' book sufficiently declares. If he asks me what I mean by 
 '^ the Catholic Church, speaking of it as it now is? I 
 '' answer. By the Catholic Church, I mean the Church 
 '^ Universal, being a collection of all the Churches through- 
 '' out the world, who retain the faith (aiva^) once delivered 
 '^ to the Saints (Jude 3.) ; that is, who hold and possess in 
 " the substance of it, that faith and religion which was 
 '' delivered by the Apostles of Christ to the first original 
 *^ Churches, according to Tertullian's rule before mentioned. 
 " Which faith and religion is contained in the Holy Scrip- 
 " tures, especially of the New Testament, and the main 
 ^' fundamentals of it comprised in the canon or rule of faith, 
 " universally received throughout the primitive Churches, 
 '' and the possession thereof acknowledged to be a sufficient 
 '^ tessera or badg-e of a Catholic Christian. All the Churches 
 '' at this day which hold and profess this faith and religion, 
 ^^ however distant in place, or distinguished by different 
 '^ rites and ceremonies, yea, or divided in some extra-funda- 
 " mental points of doctrine, yet agreeing in the essentials of 
 " the Christian religion, make up together one Christian 
 *' Catholic Church under the Lord Christ, the supreme 
 " head thereof The Catholic Church under this notion is 
 ^' not a confused heap of societies separated one from 
 " another." — ^ These are important words. — " But it seems, no 
 '' other union of the Church will satisfy the bishop, but an 
 ^^ union of all the Churches of Christ throughout the world, 
 " under one visible head, having a jurisdiction over them 
 '^ all, and that head the Bishop of Rome for the time being. 
 ** But such an union as this was never dreamed of amongst 
 ^' Christians for at least the first six hundred years, as shall 
 *^ be shown in its due place." 
 
 In addition to this mass of evidence derived from the 
 writings of English Divines, I may cite the following testi- 
 monies to the same effect from the works of three distin- 
 guished foreigners, who watched with deep interest the form 
 which the Reformation of the Church took in England, 
 Isaac Casaubon, Hugo Grotius, and Saravia : 
 
 Casaubon [ad Salmas Epist. 837, p. 489, A.D.] 1612: 
 " Quod si me conjectura non fallit, totius Reformationis 
 " pars integerrima est in Anglia, ubi cum studio veritatis 
 " viget studium antiquitatis." 
 
 Casaubon [Epist. ad Cardinal Perron, p. 494] : " Parata 
 " est Ecclesia Anglicana fidei sure reddere rationem, et
 
 51 
 
 *' rebus ipsis evlncere, auctoribus Reformationis Lie institutse 
 " non fuisse propositum novam aliquam ecclesiam condere, 
 " ut imperiti et malevoli calumniantur ; sed qu^ erant 
 " collapsa, ad formam revocare quam fieri posset optimam ; 
 " optimam autem judicarunt nascenti Ecclesise ab Apostolis 
 " traditam, et proximis seculis usurpatam." 
 
 Hugo Grotius [Epist. ad Boetsaeler, Ep. 62, p. 21, ed. 
 1637] : " Certum est mihi "Keiroupyiau Anglicanam, item 
 '* morem imponendi manus adolescentibus in memoriam 
 " Baptismi, auctoritatem Episcoporum, et Presbyteria ex 
 " solis Pastoribus composita multaque alia ejusmodi satis 
 " congruere institutis vetustioris Ecclesise, a quibus in Gallic 
 " et Belgio recessum negare non possumus." 
 
 [Epist. ad Corvinum, Epist. p. 434] : " Qui illam 
 " optimam antiquitatem sequuntur ducem, iis non eveniet 
 " ut multum sibi ipsis sint discolores. In Anglia vides 
 '^ quam bene processerit dogmatum noxiorum repurgatio ; 
 " h^c maxime de causa, quod qui id sanctissimum negotium 
 '' procurandum suscepere, nihil admiserint novi, nihil sui, 
 " sed ad meliora secula intentam habuere oculorum aciem." 
 
 Hadrian Saravia, the friend of Hooker : " Among others 
 " that have reformed their churches, I have often admired 
 " the wisdom of those who restored the true worship of 
 " God to the Church of England, — who so tempered 
 '' themselves, that they cannot be reproved for having 
 " departed from the ancient and primitive customs of the 
 " Church of God ; and that moderation they have used, 
 " that by their example they have invited others to 
 *' reform, and deterred none." {Wordsworth, Theophilus 
 Anglicanus, p. 171.) 
 
 In 1851 the Archbishops of Canterbury and York and 
 twenty bishops published a statement in which they set 
 forth '^ the undoubted identity of the Church before and 
 *^ after the Reformation;" and that at the Reformation 
 the English Church rejected certain corruptions and esta- 
 blished " one uniform ritual," but " without in any degree 
 " severing her connexion with the ancient Catholic Church." 
 (PhiUimore^s International Law, vol. ii. p. 422, and the 
 Guardian, April 2, 1851.) 
 
 In 1867, eight primates and sixty-eight bishops assem- 
 bled from all parts of the globe, under the presidency of the 
 Metropolitan of Canterbury. 
 
 The resolutions of this conference were prefaced by the 
 following introduction : 
 
 " We, Bishops of Christ's Holy Catholic Church, in 
 ^^ visible communion with the United Church of England 
 " and Ireland, professing the Faith delivered to us in Holy 
 
 D 2
 
 52 
 
 *^ Scripture, maintained by the Primitive Church, and by 
 *' the Fathers of the English Eeformation, noAV assembled, 
 " by the good providence of God, at the Archiepiscopal 
 " Palace of Lambeth, under the presidency of the Primate 
 " of all England, desire, first, to give hearty thanks to 
 " Almighty God for having thus brought us together for 
 " common counsels and united worship ; secondly, we desire 
 *' to express the deep sorrow with which v/e view the divided 
 " condition of the flock of Christ throughout the world, 
 ^' ardently longing for the fulfilment of the prayer of our 
 " Lord, ' That all may be one, as Thou, Father, art in me, 
 " ' and I in Thee, that they also may be one in Us, that the 
 " ' world may believe that Thou hast sent me ;' and, lastly, 
 " we do here solemnly record our conviction that unity will 
 " be most eftectually promoted by maintaining the Faith in 
 '' its purity and integrity, as taught in the Holy Scriptures, 
 " held by the Primitive Church, summed up in the Creedsy 
 *' and affirmed by the undisputed General Councils." 
 
 But after all no argument for the continuity of the 
 Church of England can be stronger than that which is 
 derived from the structure, order, and contents of the Prayer 
 Book. It contains the Breviarium, in which towards the 
 end of the 11th century had been inserted all the offices of 
 the canonical hours, called also Portlforlum and in England 
 Portuary, the Missale or the service for the Holy Commu- 
 nion, and the Ordlnale, wdiicli is referred to under the name 
 of the " Pie " in the prefiice. There were various " Uses " 
 or Prayer Books in England, known as the Salisbury, the 
 YorL, the Bangor, and the Hereford Uses, and others. 
 The most celebrated appear to have been the Portiforium or 
 Breviary of Sarum, which contained the Daily Services, — the 
 Sarum Missal, v/hich contained the Holy Communion Ser- 
 vice, — and the Sarum Manual, a book of occasional offices. 
 These books of devotion seem to have been compiled by 
 Osmund, Bishop of Salisbury, about the time of the Con- 
 quest ; and in 1531 a reformed edition of the Sarum Por- 
 tiforium was reprinted, and shortly afterwards a reformed 
 Missal was published. There were also Primers, which 
 contained, in a vulgar tongue, large portions of the Service 
 in use amongst the people. In 153G the Roman Breviary 
 Avas reformed, and published by a Spanish Bishop, Cardinal 
 Qnlgnonez ; and in 1544 Hermann, Archbishop of Cologne, 
 whom the Pope during the early sittings of the Council of 
 Trent deprived,* published a reformed rituaLf 
 
 In 1542 Henry VIII. directed convocation to consider 
 
 * Istoria del Concil. Trident. — Sarpi, lib. II. § .59. 
 
 t See Preface to Annotated Book of Common Prayer.
 
 the revision of the books of devotion then in use in this 
 country. It is probable that the fruit of their labours, as 
 well as the other works to which reference has been made, 
 were laid before the royal visitors appointed by Edward VI. 
 in January 1546-7, and the Committee of Convocation, to 
 whom the preparation of the Prayer Book of 1549 was 
 intrusted. 
 
 The whole Prayer Book in fact, with very inconsiderable 
 exceptions, consists of a translation of the ancient liturgies, 
 and especially of the liturgy used by the Western Church. 
 And w^e learn from the preface to the Prayer Book that the 
 object was to restore that " godly and decent order of the 
 ancient fathers " v/hich had been broken, and to introduce 
 an order of prayer and reading of Holy Scripture *^ agree- 
 able to their mind and purpose;" and that all suggested 
 alterations which *' secretly struck at some laudable practice 
 of the whole Catholic Church of Christ " were rejected ; 
 and that the calendar contained a ^^ table of feasts, vigiis, 
 fasts, and days of abstinence," which were in accordance 
 with primitive and catholic use ; while the ornaments of the 
 Church and the vestments of the ministers were such as to 
 present to the people some of the most prominent features 
 of the ancient service, and were for this reason the ground 
 of unceasing attack from the Puritans, and the disciples of 
 the Genevan school. And it is the observation of Mr. Hal- 
 lam, while speaking of the Poman Catholics, " that it w^as 
 " always held out by our Church, when the object was con- 
 " ciliation, that the liturgy was essentially the same with 
 " the mass book." — (^Constitutional History, vol. i., p. 86.) 
 
 These premises, which I have stated at some length, lead 
 me to the conclusion that no sound argument against the 
 lawfulness of the matters objected to in these articles can be 
 deduced from the mere fact of their identity with the cere- 
 monies in use before the Reformation. 
 
 Argument from Disuse. 
 
 I will next consider the argument founded on the alleged 
 de facto disuse, since the reformation, of the ceremonies or 
 ornaments complained of in these articles. 
 
 It assumes this kind of shape : 
 
 " If these things were legal they would have been in use; 
 " their non-usage is almost fatal to their claim of legality ; 
 " the presumption of law is strongly against thein ; and in 
 " order to refute that presumption a continuous usage must 
 *^ be established by those who maintain their lawfulness." 
 
 This argument seems to have been in the mind of the 
 Judge of the Consistory of London in the Knightsbridge
 
 54 
 
 Church cases, though at the same time he strenuously 
 asserted that no provision of statute or lawful canon could 
 be abrogated by non-user. The doctrine of desuetude he 
 rei^udiated, as unknown to the law of England. 
 
 This argument from the long disuse of ornaments and 
 observances recently revived cannot be altogether passed 
 over. 
 
 The fact of disuse raises a practical prejudice, if not a 
 legal obstacle to all such revivals. The consideration of the 
 causes which have induced it has a bearing upon the dis- 
 cussion of the questions which I am to adjudicate. 
 
 The argument appears to me to admit of two distinct 
 answers. 
 
 In the first place it proves too much ; for perhaps there is 
 no historical fact more certain than this, namely, that the 
 law derived from the rubrics and canons has never, at any 
 period since the Reformation, been universally and duly 
 obeyed. The proposition is startling, but I think un- 
 questionably true. The instances of disobedience are 
 striking, if not many ; take, as one example, the vestments 
 of the clergy. 
 
 The rubric of Edward VI, provides : — 
 
 " And here it is to be noted, that such ornaments of the 
 *' Church, and of the ministers thereof, at all times of their 
 '^ ministration, shall be retained, and be in use, as w^ere in 
 " this Church of England, by the authority of Parliament, 
 " in the second year of the reign of King Edward the 
 « Sixth." 
 
 And the Judicial Committee of the Privy Council, in 
 Westerton v. Liddell, most deliberately and emphatically 
 decided that — 
 
 "The rubric to the Prayer Book of January 1st, 1604, 
 " adopts the language of the rubric of Elizabeth ; the rubric 
 " to the present Prayer Book adopts the language of the 
 " Statute of Elizabeth ; but they all obviously mean the 
 " same thing, that the same dresses and the same utensils 
 " or articles which were used under the first Prayer Book 
 *^ of Edward VI. may still be used." Their lordships say, 
 " No difficulty will be found in discovering amongst the 
 " articles of which the use is there enjoined, ornaments of 
 " the Church, as well as ornaments of the ministers. Besides 
 " the vestments differing in the different services, the rubric 
 " provides for the use of an English Bible,'' &c. {Liddell 
 V. Westerton, Moore's Report, p. 156-9.) 
 
 The dresses of which the use is prescribed in the first 
 Prayer Book of Edward VI. are thus ordered : — 
 
 " Upon the day, and at the time appointed for the minis-
 
 55 
 
 « tration of the Holy Communion, the priest that shall 
 '' execute the holy ministry shall put npon him the ves- 
 " tures appointed for that ministration ; that is to say, a 
 « white albe plain, with a vestment or cope." 
 
 "And whensoever the bishop shall celebrate the Holy 
 " Communion in the Church, or execute any other public 
 *' ministration, he shall have upon him, beside his rochette, 
 " a surplice or albe, and a cope or vestment, and also his 
 « pastoral staff in his hand, or else borne or holden by his 
 
 « chaplain." , no . ^^ 
 
 The canons of 1603 could not alter or affect the positive 
 provisions of a Statute ; but, on the supposition that they 
 alone were to be consulted, the nse of the surphce m parish 
 churches is distinctly enjoined by them (Canon 58). ^ ever- 
 theless I well recollect that when Bishop Blomfield published 
 his celebrated charge in 1842, the expression therem of his 
 opinion, that the preacher ought to wear the surplice rather 
 than the 2;own in the morning service, raised a storm ot 
 relio-ious controversy and excited feeling upon which a 
 sober-minded man now looks back with surprise and 
 reo-ret And I cannot but agree with his biographer, that 
 " It will hardly be denied, that the great principle for which 
 " Bishop Blomfield contended, that in Divine service all 
 " thino-s should be done decently, but in order, is now acted 
 " upon in the Church of England to an extent, which, 
 " twenty years ago, would hardly have been expected by 
 " men of calm judgment, and which, thirty years ago, would 
 «f by most have been pronounced impossible."* ^ , , , 
 The same canons enjoined the use of copes m cathedrals 
 (canon 24), a special prayer called the bidding prayer to be 
 used by all ministers before every sermon (canon 6^), a 
 passing bell to be tolled for every dying parishioner (canon 
 67); that "upon every Sunday or Holyday " the minister 
 shall " under pain of suspension and excommunication, tor 
 " half an hour or more, examine and instruct the youth and 
 « io-norant persons in his parish in the Ten Commandments, 
 " the Articles of the Belief, and in the Lord's Prayer ; and 
 " shall dilio-ently hear, instruct, and teach them the Catechism 
 " set forth in the Book of Common Prayer" (canon 59); 
 that a particular dress, minutely specified, shall be worn by 
 ecclesiastical persons on a journey (canon 74) ; that the 
 Litany shall be said or sung wherever appointed by the 
 Prayer Book, more particularly upon Wednesdays and 
 Fridays, though they be not holydays (canon 15) 
 
 The rubric directs that the holy elements shall be placed 
 
 * Memoir of Bishop Blomfield, Vol. 2, p. 64.
 
 56 
 
 upon the Table of the Lord at a particular part of the 
 service ; but till lately, and. before the decision of the Privy 
 Council in favour of the use of the credence table, this 
 rubric was generally disobeyerl. The rubric is express in its 
 directions, that '^ unless the minister be otherwise reasonably 
 " hindered," he shall perform daily service ; that " the 
 " feasts shall be observed," in which category are included 
 all Sundays, and certain feasts and saints days ; and there 
 is also a careful table of the vigils, fasts, and days of absti- 
 nence to be observed throughout the year ; that " so many as 
 *' intend to be partakers of the Holy Communion shall 
 " signify their names to the curate at least some time the 
 *^ day before." Private baptism, which w^as only to be 
 allowed for " great cause or necessity," had so generally 
 superseded public baptism, that the late Bishop of London 
 was compelled expressly to forbid his clergy to baptize 
 privately except in cases of necessity ; and, indeed, of all 
 these precise orders, of which the catalogue is not exhausted, 
 having for their object the spiritual edification of members of 
 the Church, how very few, till lately, within our own memory, 
 have been obeyed, and how much more common has been 
 the breach than the observance of them. 
 
 It is true that Mr. Mackonochie is not charged with any 
 disobedience to the law in these respects ; his offence is that 
 of unauthorized addition, of doing too much and not too 
 little in his ministrations in the Church ; but I refer to this 
 notorious fact of general disobedience to the law in these 
 respects, because a revived obedience to it, not unnaturally, 
 excites the surprise and sometimes the anger of persons who 
 have been habituated to a more relaxed and less careful 
 system. A compliance with the law has the effect of novelty 
 upon them, and they are apt to consider as illegal not the 
 desuetude of a prescribed usage, but the restoration of it. 
 
 This argument of disuse was most strongly urged in the 
 Knisrhtsbridofe Church cases as conclusive aoainst the Cross 
 and the Credence Table ; and it was truly said that the 
 instances in which any trace of them could be substantiated 
 by evidence, since the Reformation, were very few and incon- 
 siderable, — not half-a-dozen I believe in number, and it was 
 contended that such disuse amounted to a practical rejection 
 of them by the Church. And this argument prevailed with 
 the judges of the Consistory of London and of the Arches 
 Court, who accordingly pronounced these things to be 
 unlawful. But it did not avail before the Judicial Com- 
 mittee of the Privy Council, who, looking to their innocent 
 and primitive use, reversed the sentence of these Courts and 
 pronounced them to be lawful.
 
 57 
 
 The mere fact, therefore, that the practice complained of 
 is novel, furnishes by no means an irrefragable argument 
 that it is unlawful, and it can afford, in truth, but little 
 assistance in solving the question Avhether the practices 
 charged against Mr. Mackonochie are or are not contrary to 
 the law. 
 
 In the second place the alleged disuse or desuetude must 
 be measured by a reference to the history of the institution 
 during the period in which it has prevailed. The questions, 
 — has that institution been during this period in its normal 
 condition ? has it been in a state of unconstrained freedom ? 
 of undisturbed liberty of. action? or has it during this 
 period been from time to time turned aside from its natural 
 course ? has it been oscillating between peril and disquiet 
 and the apathy which is so often their reactionary suc- 
 cessor ? has it manifested, wherever it has been in a state 
 of freedom, peace and vigour, a desire to restore and reserve 
 as much as it could of a lawful inheritance which had been 
 forcibly put in abeyance, and had that desire and endeavour 
 always accompanied a revival of life and energy? These 
 are questions which must be answered before the argu- 
 ment from disuse can be properly estimated. A careful 
 examination of the history of this country, and more 
 especially of that part of it which relates to the Church, 
 affords some explanation of the careless and imperfect com- 
 pliance with the directions and orders of the Prayer Book 
 to which I have adverted. To enter at length into this 
 history would far exceed the limits of my present judg- 
 ment, but I will make a very cursory reference to the 
 principal epochs. 
 
 From the reign of Edward YI. to the reign of Her 
 present Majesty the intervals during which the Church 
 has been undisturbed by troubles from within or without 
 have been few. 
 
 During the short reign of Edward VI. she underwent 
 various frials. Her worship and her ritual were twice dealt 
 with by Parliament, and not only her revenues but the orna- 
 ments and treasures within her fabrics were scandalously 
 plundered in order to fill the purses of the corrupt courtiers, 
 of a precocious, well meaning, but prejudiced and narrow- 
 minded boy, who, during the few years of his reign, was 
 little more than an instrument in the unscrupulous hands 
 of the religious and political factions which surrounded and 
 besieged his throne. 
 
 I will borrow the language of Fuller in his Church History 
 of Britain {Book VIL p. 401).
 
 58 
 
 Speaking of the year 1549, this quaint but faithful his- 
 torian says — 
 
 " Come we now to the saddest difference that ever hap- 
 " pened in the Church of England, if we consider either the 
 " time how long it continued, the eminent persons therein 
 " ingaged, or the doleful! effects thereby produced. It was 
 '^ abou't matters of conformity. Alas ! that men should have 
 '^ lesse wisdome than locusts ; which wben sent on God's 
 " errand, ' did not thrust one another ' (Joel ii. 8), whereas 
 " here such shoving, and shouldring, and hoising, and heav- 
 '^ ings, and justleing, and thronging, betwixt Clergie-men 
 " of the highest parts and places. For now nonconformity 
 '^ in the daies of King Edward was conceived, which after- 
 " ward in the reign of Queen Mary (but beyond sea at 
 " Frankford) was born, which in the reign of Queen Eliza- 
 " beth was nursed and weaned, which under King James 
 " o-rew up a young youth, or tall stripling, but towards the 
 " end of King Charles his reign, shot up to the full strength 
 '' and stature of a man, able, not only to coap with, but 
 " conquer the hierachie its adversary." 
 
 Speaking of the year 1552, the same historian says — 
 
 " Lately information was given to the king's councell, 
 " that much costly furniture, which was embezelled, might 
 " very seasonably (such the king's present occasions) and 
 " profitably be recovered. For private men's halls were 
 " hung with altar-cloathes, their tables and beds covered 
 " with copes, instead of carpets and coverlets. Many drank 
 " at their daily meals in chalices, and no wonder if it came 
 " to the share" of their horses to be watered in rich coffins of 
 " marble. And, as if first laying of hands upon them were 
 " sufficient title unto them, seizing on them was generally 
 " the price they had payed for them. Now although four 
 " years were elapsed since the destruction of colledges and 
 " chanteries, and much of the best Church ornaments was 
 " transported beyond the seas, yet the Privie Councel 
 " thought this very gleaning in the stubble, would richly be 
 " worth the while, and that, on strict inquisition, they should 
 " retrive much plate in specie and more money for mode- 
 " rate fines on offenders therein. Besides, whereas parish 
 " churches had still many rich ornaments left in the custody 
 " of their wardens, they resolved to convert what was super- 
 " fluous or superstitious to the king's use. To which pur- 
 *« pose commissions were issued out to some select persons 
 " in every county, etc." 
 
 It was probably a like spirit of avarice which, using the 
 honest fanaticism of the Geneva divines as its instrument,
 
 59 
 
 dictated the destruction of all the ancient service books as 
 well as images, by the Order in Council of December 24, 
 1549, and the 3rd and 4th of Edw. VL c. 10. 
 
 The bindings and cases of these books of devotion were 
 often studded with gems and of great value ; and the images 
 from their costly material, as well as their careful execution, 
 offered a tempting prey to the spoiler. 
 
 During the succeeding reign of Mary the Church was 
 altogether driven from her sanctuary. Elizabeth, indeed, 
 exerted the great sagacity which she possessed in laying 
 deep and wide the foundations of the establishment to which 
 the Church was restored. But the foreign element, which 
 the persecutions of Mary had much increased, began to 
 ferment, and to wage a ceaseless war with the principles 
 upon which the Church had been reformed, and though the 
 masculine sense and vigorous hand of this great Queen 
 restrained the attacks of the innovators from Geneva^ and 
 Germany, she was obliged to tolerate a practical laxity in all 
 that related to the ritual of the Church, in order to secure 
 the maintenance of the Catholic doctrine. 
 
 It cannot be doubted from her resolute retention of the 
 ornaments of her Chapel, including lights and a crucifix, 
 from her avowed belief in the Real Presence, as well as from 
 her language and conduct, that her desire and intention were 
 to embrace the Lutheran and the Eomanist within the wide 
 and liberal pale of the National Church * 
 
 And I may observe in passing, that it was in the same 
 spirit of liberality and comprehensiveness that our Bishops 
 in 1661, said, " It was the wisdom of our Reformers to draw 
 " up such a liturgie as neither Romanist nor Protestant 
 " could justly except against ; and therefore, as the first 
 " never charged it with any positive errors, but only the 
 " want of something they conceived necessary, so it was 
 ^^ never found fault with by those to whom the name of 
 ^« Protestants most properly belongs, those that profess the 
 « Augustine Confession ; and for those who unlawfully and 
 " sinfully brought it into dislike with some people, to urge 
 " the present state of affairs as an argument why the book 
 " should be altered to give them satisfaction, and so that 
 «^ they should take advantage of their own unwarrantable 
 
 * The rubric, commonly called the black rubric, after the Communion, in 
 the second Prayer Book of Edward VI., explained that no adoration was due 
 to the real and essential presence. Elizabeth struck it out. The rubric 
 reappears in the last Prayer Book with the very material alteration of " or 
 " unto any corporal presence of Christ's natural flesh or blood."
 
 60 
 
 '' acts, is not reasonable." — {Latliburys History of the Book 
 of Common Prayer, chap. 13, p. 324.) 
 
 Bishop Sandys writes to Archbishop Parker : " The last 
 " book of service is gone through with a proviso to retain 
 " the ornaments which were used in the 1st and 2nd year 
 " of King Edward until it please the Queen to take further 
 '^ order for these. Our gloss upon this text is that we shall 
 " not be forced to use them, but that others in the meantime 
 " shall not convey them away, but that they may remain for 
 " the Queen." Strype Ann., v. 1., P. 1., p. 122. Burnet, 
 V. 1., P. 2., p. 465. 
 
 The Puritans rejected with scorn the toleration which, the 
 Queen and Walsingham, with a rare wisdom unknown to 
 their age, were ready to extend to them. Bishop Madox 
 cites a declaration of this party as follows : — 
 
 "As for you dear brethren, whom God hath called into 
 *' the brunte of the battle, the Lord keep you constant, that 
 " ye yield neither to toleration, neither to any other subtil 
 " })ersuasions of dispensations or licences, which were to 
 " fortify their Romish practices ; but, as you fight the 
 " Lord's fight, be valiant. The matter is not so small as the 
 " world doth take it ; it will appear, before all be ended, 
 " what an hard thing it is to cut off the rags of the Hydra 
 *^ of Rome. Let us not make the heritage of God as a bird 
 " of many colours, holding of divers religions; but rather 
 " let us take away, if we can, the names, memories, and all 
 " monuments of Popery." The Bishop goes on to say, 
 " Who were meant by this description in the year 1570 
 " needs no explanation. The bishops and clergy of the 
 " Church of England were then constantly represented as 
 " bearing the names and supporting the monuments of 
 '' Popery. Agreeably to this exhortation of yielding to no 
 " toleration, nor accepting any indulgence, in all their 
 " petitions, admonitions, supplications, etc., we see nothing 
 " of a toleration for themselves only, but their single request 
 " or command, in whichever style they speak, is, the absolute 
 " overthrow of the established Government and worship, 
 " and the introduction of their own with penalties, even 
 " sharp punishments to be inflicted upon those who did not 
 " comply with it." (p. 289.) 
 
 In 1597 Hooker wrote the fifth book of his Ecclesiastical 
 Polity in which he vindicated the rites and ceremonies of 
 the Church of England against the attacks of the Puritans, 
 and pointed out with a prophetic spirit, the confusion which 
 would ensue *' if it should be free for men to reprove, to 
 " disgrace, to reject, at their own liberty, what they see
 
 *' done and ])ractised according to order set down." — 
 {E, R, Book V. c. 10.) 
 
 In the reign of EKzabetli's successor, tbe Hampton Court 
 Conference, and the canons of 1603, aided by the disposition of 
 James, and the great power of his prerogative which then 
 rested on the Statute of Elizabeth, and the general tran- 
 quilHty of the country, enabled the Church to put in force, 
 in some degree at least, the provisions of her ritual. 
 
 The leaven of the Puritans, however, was at work, and is 
 well illustrated by the language which they held respecting 
 our Prayer Book at this time. I refer again to Bishop 
 Madox (p. 73):— . 
 
 " But Mr. Neale tells us, it would have obviated many 
 " objections, if the Committee had thrown aside the Mass 
 *^ Book, and composed an uniform service in the language 
 " of Scripture.'^ This was an objection frequently made by 
 the Puritans, with great variety of very severe and very 
 coarse expressions. Thus in their first admonition to the 
 Parliament, " Remove (say they, in great warmth) homilies, 
 " articles, injunctions, and that prescript order of service 
 " made out of the Mass Book." In their second admonition 
 to the Parliament they express themselves after this manner: 
 ^' We must needs say as followeth, that this book is an 
 ^* imperfect book, culled and picked out of that Popish 
 ^^ dunghill, the Portuise and Mass Book, full of all abomina- 
 ^^ tions." Another of them is pleased to deliver his opinion 
 in the following words : ^* The whole form of the Church 
 *^ Service is borrowed from the Papists, pieced and patched, 
 *^ without reason or order of edification. Their famous 
 leader, Mr. Cartwright, likewise declares his and his 
 brethren's displeasure upon this head: "Before I come to 
 " speak of prayers (says he) I will treat of the faults that 
 " are committed almost throughout the whole liturgy 
 " and service of the Church of England, whereof one is 
 " that which is often objected by the authors of the admo- 
 *^ nition, that the form of it is taken from the Church of 
 " Antichrist." 
 
 During the early part of the reign of Charles I. the 
 advance in ritual restoration was rapid, and was accompanied 
 by great imprudence and little knowledge of, or attention to, 
 the actual circumstances of the State. The Puritan 
 religious element allied itself with the political element ; and 
 so it came to pass that a literal and strictly legal compliance 
 with the rubric formed no insignificant part of the impeach- 
 ment which brought about the judicial murder of Archbishop
 
 62 
 
 Laud, one of the most distinguished writers against the 
 pretensions of the Papacy.* 
 
 Then was the wisdom, as well as the piety, of the 
 principles upon which our Church was reformed demon- 
 strated. In Protestant Germany and in Geneva, where the 
 Apostolical order and primitive usages had been, from 
 whatever causes, neglected or abandoned, and in this kingdom 
 during the troubles of the civil wars almost every variety 
 of sect which the vanity, presumption, and ignorance of 
 man, under the influence of unchecked religious excitement 
 could devise, sprang into existence. 
 
 All these, 
 
 " Who thought religion was intended 
 For nothing else but to be mended," 
 
 and whom the poem of Butler has rescued from oblivion, have 
 furnished to Rome her strongest weapon for the defence of 
 abuses equally without warrant from Scripture and tradition, 
 and for attack upon the purer branches of the Catholic 
 Church. 
 
 At the restoration, the Church, with the full and hearty 
 consent of the people, restored, with few exceptions, the 
 primitive ritual, of which Cranmer and Ridley, the chiefs of 
 a noble army of martyrs, had approved. 
 
 But the impoverished condition of the clergy, the dilapi- 
 dated state of the desecrated Churches, the profligacy 
 (a reaction from Puritanism) and poverty of the landowners, 
 combined to prevent that moderate amount of ritual 
 developement which a strict obedience to the direction of 
 the rubric required. 
 
 * Whitelock. (Memorials of the English Affairs. Tolio. Tonson, 1732.) 
 
 Anno 1643, p. 75. — The Commons "ordered copes and surplices to be 
 taken away out of all Churches." 
 
 Anno 1644, p. 86. — Laud on his trial; objected to him "that he caused 
 " superstitious pictures, images, and crucifixes to be set up in many churches, 
 " and in the King's chapel caused a popish crucifix to be hung up over the 
 " altar upon every Good Friday, which had not been there before since the 
 
 " reign of Queen Mary." " and his consecrating of churches, tapers, 
 
 " and candlesticks, organs, and particular prayers for those purposes." 
 
 The Commons " ordered the taking away of all such pictures, images, and 
 " crucifixes in the King's chapel at Whitehall." 
 
 Page 91. — "The Earl of Newcastle desired a treaty, which was admitted, and 
 " he demanded to march away with bag and baggage, etc., and that all within 
 *' the town should have liberty of conscience, the prebends to enjoy Iheir places, 
 " to have common prayer, organs, copes, surplices, hoods, crosses, etc." 
 
 " These things were denied by the Parliament," etc. This was at York, 
 June 1644. 
 
 " August 1644, p. 98. — Col. Middleton sent up to the Parliament from 
 " Sarum many copes, surplices, tippets, hoods, plate, and the picture of the 
 " Virgin Mary, talcen there ; other relics being divided among the soldiers."
 
 63 
 
 Lord Macaulay's picture of the miserable status of the 
 parochial clergy during the 17th century (History of 
 England, Vol. I., p. 327) is probably painted in too dark 
 colours : but there is no doubt that it was one highly 
 unfavourable to ritual ornament either in the dress of the 
 priest or in the furniture of the church. 
 
 It was seldom that men connected with noble families 
 entered into Holy Orders, and the adoption of that profes- 
 sion by Herbert was a remarkable phenomenon of the 
 time. 
 
 Then came the struggle of James II., by God's good 
 providence defeated, to reimposc the yoke of Rome upon 
 the liberties of our Church. 
 
 The very learned Cave, in his Epistle Dedicatory to the 
 History of the Fathers of the Church in 1683, observes, — 
 
 " The Church of England, incomparably the best part of 
 " the Catholic Church at this day visible upon earth, is 
 '' miserably torn in pieces, hated, and maligned ; secretly 
 " undermined by enemies from abroad, and openly assaulted 
 '' by pretended friends at home. Altar is erected against 
 ^^ altaj', and private congregations kept up in opposition 
 '^ to the publick constitution. The liturgy and forms of 
 " Divine administration derided, odiously traduced, and run 
 " down with nothing but noise and clamour. The rites and 
 " institutions, though the same that were used in the primi- 
 " tive ages of Christianity, derided as antichristian. The 
 " discipline and authority weakened, and, by the obstinacy 
 " and perverseness of men, made ineffectual." 
 
 The great defection of the non-jurors, who were much 
 attached to ritual observances, among whom were some of 
 the most pious and learned prelates of the realm, at the 
 beginning of William III.'s reign, must, I think, have been 
 unfavourable to ritual observances in the Church Establish- 
 ment which they had left.* 
 
 As we enter on the 18th century we trace the gradual 
 increase of disobedience to all directions of the Church which 
 
 * Mr. Hallam observes : "Eight Bishops, including the Primate and several 
 " of those who had been foremost in the defence of the Chiu'ch during the 
 " late reign, with about four hundred of the Clergy, some of them highly 
 " distinguished, chose the more honorable course of refusing the new oaths : 
 " and thus began the schism of the Non-jm'ors, more mischievous in its com- 
 " mencement than its continuance, and not so dangerous to the government of 
 " William III. and George I. as the false submission of less sincere men." 
 Having alleged reasons in favour of the imposition of the oath, he adds in a 
 note: "Yet the effect of this expulsion was highly unfavourable to the new 
 " government ; and it required all the influence of a latitudinarian school of 
 " Divinity, led by Locke, which was very strong among the laity under 
 «' William, to counteract it."— (Constit. Ilist., Vol. III., p. 108, 7th ed.)
 
 / 
 
 64 
 
 had for their object not merely the ornament but the decency 
 of Divine worship. 
 
 In 1710 good Bishop Fleetwood, in his charge to his 
 clergy, observed, "that unless the good public spirit of 
 " building, repairing, and adorning churches prevails a great 
 " deal more among us, and be more encouraged, an hundred 
 " years will bring to the ground an huge number of our 
 " churches." 
 
 " During the reigns of the two first Georges, and the 
 beginning of the third, a decay oF piety and learning, 
 with brilliant exceptions indeed, went hand in hand with 
 slovenliness of ritual and habitual indifference to rubrical 
 injunctions upon this subject; and in 1751, that is 40 years 
 afterwards, not many months before his death, that 
 great prelate. Bishop Butler, whose " Divine Philosophy " 
 has charmed educated men of all creeds, referring to these 
 words of Bishop Fleetwood, uttered this lamentation, " This 
 "* excellent prelate made this observation forty years ago ; 
 " and no one, I believe, will imagine that the good spirit 
 *' he has recommended prevails more at present than it did 
 " then." 
 
 In another part of the same charge he says : " Nor does the 
 " want of religion in the generality of the common people 
 " appear owing to a speculative disbelief or denial of it, but 
 " chiefly owing to thoughtlessness and the common tempta- 
 " tions of life. Your chief business, therefore, is to endea- 
 " vour to beget a practical sense of it upon their hearts as 
 " what they acknowledge their belief of, and profess they 
 " ought to conform themselves to. And this is to be done by 
 " keeping up, as we are able, the form and face of religion 
 " with decency and reverence, and in such a degree as to 
 " bring the thoughts of religion often to their minds ; and 
 " then endeavour to make this form more and more subser- 
 " vient to promote the reality and power of it. The form of 
 " religion may indeed be where there is little of the thing 
 " itself, but the thing itself cannot be preserved amongst 
 " mankind without the form. 
 
 " That which men have accounted religion in the several 
 «^ countries of the world, generally speaking, has had a great 
 " and conspicuous part in all public appearances, and the 
 " face of it has been kept up with great reverence throughout 
 " all ranks, from the highest to the lowest ; not only upon 
 " occasional solemnities, but also in the daily course of 
 " behaviour. In the heathen world, their superstition was 
 "the chief subject of statuary, sculpture, painting, and 
 " poetry. It mixed itself with business, civil forms, diver-
 
 €5 
 
 sions, domestic entertainments, and every part of commou 
 life. The Mahometans are obliged to short devotions five 
 times between morning and evening. In Koman Catholic 
 countries people cannot pass a day without having religion 
 recalled to their thoughts, by some or other memorial of 
 it, by some ceremony of public religious form occurring 
 on their way ; beside their frequent holidays, the short 
 prayers they are daily called to, and the occasional devo- 
 tions enjoined by their confessors. By these means their 
 superstition sinks deep into the minds of the people, and 
 their religion also into the minds of such among them as 
 are serious and well-disposed. Our reformers, considering 
 that some of these observances were in themselves wrong 
 and superstitious, and others of them made subservient to 
 the purposes of superstition, abolished them, reduced their 
 form of religion to great simplicity, and enjoined no more 
 particular rules, nor left anything more of what was 
 external in religion, than what was in a manner necessary 
 to preserve a sense of religion itself upon the minds of 
 the people. But a great part of this is neglected by the 
 generality amongst us ; for instance, the service of the 
 Church, not only upon common days, but also upon Saints 
 days, and several other things, might be mentioned. Thus 
 they have no customary admonition, no public call to 
 recollect the thoughts of God and religion from one 
 Sunday to another." 
 
 " Indeed in most ages of the Church the care of reason- 
 able men has been, as there has been for the most part 
 occasion, to draw the people off from laying too great 
 weight upon external things, upon formal acts of piety. 
 But the state of matters is quite changed now with us. 
 These tilings are neglected to a degree which is and 
 cannot but be attended with a decay of all that is good. 
 It is highly seasonable now to instruct the people in the 
 importance of external religion. 
 
 " And doubtless under this head must come into considera- 
 tion a proper regard to the structures which are consecrated 
 to the service of God. In the present turn of the age 
 one may observe a wonderful frugality in everything 
 which has respect to religion, and extravagance in every- 
 thing else. But amidst the appearance of opulence and 
 improvement in all common things, which are now seen in 
 most places, it would be hard to find a reason why these 
 monuments of ancient piety should not be preserved in 
 their original beauty and magnificence. But in the least 
 opulent places they must be preserved in becoming repair^ 
 
 E
 
 66 
 
 " find everything relating to the Divine service be, however, 
 ^^ decent and clean, otherwise we shall vilify the face of 
 " religion, whilst we keep it up. All this is, indeed, prin- 
 ^^ cipally the duty of others ; yours is to press strongly upon 
 " them what is their duty in this respect, and admonish them 
 " of it often, if they are negligent/' — ( Works ^ Yol. 2., pp. 
 315,317.) 
 
 Then followed the great schism of which the pious Wesley 
 was unwillingly and unwittingly the leader, but of which 
 the apathy and sloth of the Church was . the true cause. A 
 resuscitation of Christian life was afterwards brought about 
 by a school in the Church which, though with little knowledge 
 of or care for ecclesiastical traditions or primitive usage, 
 yet almost within the memory of the present generation 
 represented the eartnestness and energy of the establish- 
 ment. Both these events were unfavourable to the mainte- 
 nance of ritual observances. 
 
 The piety of this school is not incompatible with superior 
 erudition and historical knowledge in persons more sus- 
 ceptible to the influences of external rites and ceremonies. 
 A school has sprung up in our memory, which, having first 
 restored the true ecclesiastical architecture in our churches, 
 proceeded to inquire into the real meaning of the rubrical 
 directions in our Prayer Book, examined them by the 
 light of history and tradition, and arrived at the conclusion 
 that a bare and unattractive service, sordid furniture, and 
 the absence of all that was beautiful in art in the Temple of 
 God, was not a necessary condition of a Church which had 
 thrown off the corruptions and novelties of Rome. The 
 Prayer Book referred them to the custom and usage which 
 prevailed in the second year of Edward the Sixth. In the 
 Lutheran and Swedish services they found crucifixes, 
 incense, lighted candles, and gorgeous dresses. They thought 
 it obvious, therefore, that no necessary connexion subsisted 
 between these ornaments and usages of primitive antiquity, 
 and the mediaBval and false claims of the Papacy. 
 
 Recognizing the spirit of this movement in the Church, 
 the late Bishop of London, in his charge in 1842, used this 
 emphatic language : — 
 
 " Every clergyman is bound by the plainest obligations of 
 " duty to obey the directions of the rubric. For conforming 
 " to them, in every particular, he needs no other authority 
 " than that of the rubric itself. We ought not to be 
 *^ deterred from a scrupulous observance of the rights and 
 " customs prescribed or sanctioned by our Church by a 
 " dread of being thought too careful about the externals of 
 ^^ religion. If we are not to go beyond her ritual, at least
 
 67 
 
 " we ought not to fall short of it ; nor to make her public 
 " services less frequent, nor more naked and inexpressive, 
 " than she intends them to be." 
 Again he says,— 
 
 " An honest endeavour to carry out the Church's inten- * 
 " tions, in every part of public worship, ought not to be I 
 " stigmatized as Popish or superstitious. If it be singular, I 
 " it is such a singularity as should be cured, not by one \ 
 '^ person's desisting from it, but by all taking it up. When 
 " I have been asked, whether I approved of certain changes 
 " in the mode of celebrating divine service, which were spoken 
 " of as novelties, but which were in fact nothing more than 
 " a return to the anciently established order of the Church, 
 " my answer has been, far from questioning the right of 
 " the clergy to observe the rubric in every particular, I 
 " know it to be their duty ; and the only doubt is, how far 
 " are ice justified in not enforcing such observance in every 
 " instance."— (pp. 30, 31.)' 
 
 Bishop Stanley, in his charge in 1845, says, " Speaking 
 '^ of the decorations of churches, I am aware of the reply ; 
 " they pander, it is said, to idolatry, and may again become 
 " the object of superstitious worship. In a former age, when 
 " the minds of men were under the control of a superstitious 
 " and designing priesthood, such reasoning might have weight, | 
 " but I must confess I cannot now hear it without mingled | 
 '' sentiments of pain and surprise." * * * «f We need 1 
 " not," he concludes, " like the Puritans of old, banish the 
 '^ influence of art from the sphere of religion, and return to 
 " that rude spirit which went forth as the destroyer of all 
 '^ that was beautiful, glorying in its barbarous mutilations." 
 I will conclude my observations on this subject in the 
 words of the oldest and certainly not the least able and 
 learned of our prelates. In 1851 the Bishop of Exeter said, 
 (from Appendix A. to the report of the Eitual Commission, 
 page 122) '^ Let me make one general remark. Where the 
 " congregation consists mainly of the poorest orders, there 
 " we commonly observe a great love of a majestic and even 
 *^ elaborate service. The ornaments of their church; the 
 '' storied glass ; the painted, and it may be gilded, walls ; 
 " the table of the Lord elevated above the rest, and decked 
 " with sober yet costly furniture ; the pealing organ ; the 
 " chanted psalms; the surpliced choristers; the solemnity 
 " of the whole ritual — gladdens, while it^ elevates their 
 *^ minds ; they recognize in it their own high privilege as 
 '^ Christians, and rejoice to find themselves equal partici- 
 ^' pants with their richest neighbours in the homage thus 
 *^ paid to the common Lord and Father of all. In truth, 
 
 E 2
 
 6S 
 
 *' when we consider the little which the poor man has to 
 " (leHght his heart and touch his imagination in his own 
 *' squalid home, we ought to rejoice that he can find enjoy- 
 " ment in the house of prayer, his Father's house. For this 
 " reason few occurrences have affected me more than the 
 " lamentations of the poor worshippers, in one of the districts 
 '^ of the metropolis, when they saw, or thought they saw, at 
 ^' the dictation of a riotous and lawless mob of strangers, 
 " the approaching surrender of the ritual which they loved, 
 '' and which was their weekly, to many among them the 
 '^ daily, solace of that poverty to which the providence of 
 " God had consigned them." 
 
 It was in this spirit that the Church of St. Alban's was, 
 we know, built. In this spirit we must all hope that its 
 services have been conducted. But it remains to be seen 
 whether they have or have not gone beyond those bounds of 
 ritual observance which the law of our Church has set. 
 
 General Principles for the Coristruction of Rubrics. 
 
 In the foregoing observations I have dealt with two heads 
 of the arguments urged by the Counsel for the Promoter, 
 which for the sake of clearness I will repeat ; namely, — 
 
 That these particular practices are by necessary implica- 
 tion prohibited, inasmuch as they are connected with Roman 
 or Popish doctrines. 
 
 And that as such they have, as a matter of fact, been 
 disused ever since the Reformation. 
 
 I am of opinion that neither of these arguments can avail 
 to prove that the practices complained of are illegal. I have 
 now to consider the two other heads of their argument; 
 namely. 
 
 That, as by these practices a new rite or ceremony has 
 been added to those which are prescribed by the Statutes 
 of Uniformity, such practices are unlawful. 
 
 And that these particular additions are expressly pro- 
 hibited. 
 
 The due consideration of these arguments renders it 
 expedient that I should previously determine upon what 
 principles the rubrical directions of the Prayer Book should 
 be construed. 
 
 It has been argued on the one side that the legal effect of 
 express directions in the rubric is to shut out every rite, 
 ceremony, utensil, or ornament which is not the subject of 
 such express provision, or by necessary implication directly 
 subsidiary to it. It has been argued, on the other side, that 
 every ancient Catholic rite, ceremony, utensil, or ornament 
 which is not the subject of an express prohibition is lawful.
 
 69 
 
 I am not disposed to assent to either of these propositions in 
 their full latitude. 
 
 I believe the following rules to be well founded in prin- 
 ciple, reason, and law, and I shall endeavour to guide myself 
 by them ; namely, that what is expressly prohibited is pro- 
 hibited altogether, and may not be evaded by any contri- , 
 vance which, under a different name or appearance, attains | 
 the same end ; that whatever is expressly ordered may not j 
 be evaded by an illusory or partial compliance ; that what- .* 
 ever is subsidiary to what is ordered, and whatever being in \ 
 itself decent and proper in accordance with primitive and | 
 catholic use, and which is not by any fair construction neces- ^ 
 sarily connected with those Roman novelties which the 1 
 Church '^cut away and clean rejected" (to use the language ! 
 of the Prayer Book) at the Reformation, is, under restric- 
 tions to be mentioned, lawful. 
 
 There are, in other words, three categories of these things, 
 (1.) Things lawful and ordered. 
 (2.) Things unlawful and prohibited. 
 (3.) Things neither ordered nor prohibited expressly, or 
 by implication, but the doing or use of which 
 must be governed by the living discretion of 
 some person in authority. 
 
 Construction of Rubric as to the Discretion of the Ordinary, 
 
 I wish to say a word first upon this last category. 
 
 The compilers of our Prayer Book, and the Legislature 
 which clothed it with the authority of a Statute, were well 
 aware that such a living discretion was indispensably neces- 
 sary for the government of the Church in the performance 
 of her Divine service, as well as in the due discharge of her 
 other functions. 
 
 In the preface concerning the service of the Church, it is 
 stated that " nothing can be so plainly set forth but doubts 
 " may arise in the use and practice of the same ;" accord- 
 ingly the first and every subsequent Prayer Book, including 
 the present one, provided what must have been intended 
 and believed to be a sufficient remedy for the evil which 
 was thus contemplated as of possible, perhaps probable, 
 occurrence. 
 
 It is important to notice the nature and character of the 
 remedy proposed. It was one in perfect accordance with 
 the principle upon which the order and discipline of the 
 Church had, in obedience to the will of Christ, been founded 
 by his Apostles ; a principle which recognized the apostolical 
 order of bishops as necessary for the due constitution of the 
 Church ; and in perfect accordance with the great principle of
 
 70 
 
 the Reformation of the Church in England, that a duly con- 
 secrated bishop had a Divine authority, perfect and complete 
 in itself, and wholly independent of the previous consent or 
 subsequent ratification of that authority by the Pope. 
 
 The remedy was as follows : ^^ to appease all such diver- 
 " sity (if any arise), and for the resolution of all doubts 
 " concerning the manner how to understand, do, and execute 
 '^ the things contained in this book, the parties that so 
 ^^ doubt or diversely take anything shall alway resort to the 
 " bishop of the diocese, who by his discretion shall take order 
 " for the quieting and appeasing of the same ; so that the same 
 " order be not contrary to anything contained in this book, 
 " and if the bishop of the diocese be in doubt, then he may 
 " send for the resolution thereof to the archbishop." 
 
 The words of this order deserve the closest attention ; it 
 provides '^ for the resolution of all doubts concerning the 
 *^ manner how to understand, do, and execute the things 
 " contained in this book ;" terms which certainly appear to 
 comprehend every conceivable difficulty or doubt which could 
 possibly arise. The authority which is to resolve these 
 doubts and remove these difficulties, is that officer in whose 
 hands, previously to the statutory enactment of any Prayer 
 Book, the Church had placed a supreme command over all 
 that relates to her ritual. — " The parties that so doubt or 
 " diversely take anything shall always resort to the bishop 
 '^ of the diocese." The mode of resolution is not stated, 
 but the language is such as to render it improbable that any 
 formal proceedings in a court were contemplated. '^ The 
 " bishop by his discretion shall take order for the quieting 
 " or appeasing of the same,'' — large, and, I think, wise 
 expressions, making reference to a living authority, such as 
 the nature of the thing seems to demand, and the Church 
 had always recognized as having the power to deal with the 
 circumstances of each case as they arose. Was there any 
 limitation to this authority ? — One only, it appears ; that his 
 order '^ shall not be contrary to anything contained in this 
 " book ;" leaving, therefore, in my judgment, within the 
 domain of his authority that third category to which I have 
 referred, namely, " things neither ordered nor prohibited 
 '* expressly or by implication. '' 
 
 Was there any provision for controlling the exercise of 
 this discretion? — -Yes, a provision not inserted it is true 
 in the first Prayer Book, but equally in accordance with 
 the discipline of the Catholic Church and with the denial 
 of papal pretension, — the provision " that if the bishop be in 
 " doubt he may send for the resolution thereof to the arch- 
 " bishop."
 
 ^1 
 
 Some construction must be placed upon this order. There 
 are but three possible constructions which occur to my mind : 
 one, that the order merely means that the minister or 
 " party " may quiet his own conscience by having recourse 
 to the private advice of the Ordinary, which advice, when 
 given, he is conscientiously bound to follow ; a second con- 
 struction is, that the order contemplates formal proceedings 
 in the ecclesiastical courts of the diocese and the province ; 
 the third is, that which I have suggested. 
 
 It is certainly remarkable that as far as I am aware this 
 order has never yet received any judicial interpretation. I re- 
 member very well arguing before a very learned ecclesiastical 
 judge, Sir Herbert Jenner Fust, in '' the Stone Altar case ;" 
 (it was brought into the Court of Arches by appeal from the 
 sentence of the Court of Ely, which Court had affirmed the 
 legality of the stone altar,) that the question was one to be 
 decided according to the discretion of the Ordinary, according 
 to this order ; and, in his judgment. Sir H. J. Fust said, 
 " After much consideration now given, I am of opinion the 
 " matter is not one of discretion but of law. Were it other- 
 " wise I should be desirous of consulting the wish of the 
 " parish."— (1. Kobertson's Eeports, p. 255.) It was clearly, 
 therefore, the oi)inion of Sir H. J. Fust, who was perfectly 
 conversant with ecclesiastical law and practice, that this order 
 was not to be treated as a dead letter, although, after much 
 reflection, he was of opinion the questions as to the material 
 and position of the altar-table did not come within its 
 purview. The structure of a stone altar he conceived to be 
 " contrary " to the provisions of the Prayer Book. And 
 in Westerton v. Liddell, the Lords of the Privy Council, 
 after deciding that it was lawful to place upon the holy 
 table cloths of various colours, observed, " whether the 
 '' cloths so used are suitable or not is a matter to be left 
 '' to the discretion of the Ordinary."— (ilf core's Report, 
 p. 188). 
 
 There is a difficulty arising out of this construction, from 
 the consideration of which I must not shrink. It may be 
 said that the bishop, when he had taken order for appeasing 
 the doubt, would have no legal means of enforcing that 
 order, and that for the purpose of such enforcement he must 
 have recourse to his court. But it appears to me that, on 
 the supposition that the matter was one on which he could 
 exercise his discretion, he could clothe his order with the 
 character of a monition, and that a disobedience to such 
 monition would subject the person disobeying to the penalties 
 of contumacy. 
 
 I should observe that the canon law unquestionably
 
 72 
 
 placed in the hands of the bishop the authority to govern all 
 questions of ritual. 
 
 " Et quidem " (Van Espen says) "quia dispares diversarum 
 " nationum mores et ingenia diversos ritus et cseremonias, 
 ^' ut in politicis ita in ecclesiasticis exigunt, liinc in rltibns 
 '' magna eccleslarum varietas ; prsesertim quia nuUo extante 
 '' de his Chrlsti vel Apostolorum praecepto, libera potestas 
 *' episcopis relicta erat, id sentiendi et decernendi quod 
 " unicuique salva fide magis expediens videbatur." 
 
 And citing the decree of a synod he says ; '^ Novas caere- 
 '' monias nulla3 in ecclesiis recipiantur sine episcopi judicio." 
 — ( Van Espen ^ vol. i., pp. 411, 412.) 
 
 Upon this construction of this rubrical order, it will be 
 my duty to consider whether any of the charges preferred 
 against Mr. Mackonochie ought to have been dealt with by 
 the discretion of the Ordinary, and not to have been made 
 the subject of a criminal proceeding against him in this or in 
 any other Court. 
 
 Construction of Rubrics generally. 
 
 With respect to the two other categories of rubrics, 
 namely, those which relate to things lawful and ordered, and 
 things unlawful and prohibited, there is a question in limine 
 which must be considered. Is there a common law of the 
 Church unwritten, living by usage, though partly expressed, 
 perhaps, by judicial decisions ; but still more, to use a common 
 expression, taken for granted by all authorities in Church 
 and State — filling up the void of positive provision in statute 
 or formulary — a necessary part of an organized religious 
 system and establishment, rendering the practical working 
 of it possible, and, on the whole, harmonious ? 
 
 That there has been such a usage in the Church at large, 
 from its earliest foundation, is certain, " We know no such 
 '• customs, neither we nor the churches of God," was the 
 lano-uage which we learn from inspired authority she used 
 as her shield against the earliest assaults upon her integrity. 
 " Let the ancient customs prevail " was the maxim, fatal to 
 the medieval and modern pretensions of Kome, which the 
 Church enunciated in her earliest oecumenical council. 
 The canon law of the Western Church fully recognizes 
 custom and usages as a distinct source of ecclesiastical juris- 
 prudence. Was the branch of this Church, which the 
 constitution and the legislature have established in this 
 kingdom devoid of this subsidiary aid to her discipline and 
 government ? 
 
 In the case of Willson v. McMath (3 Phillimore, 78) a
 
 73 
 
 very curious question was raised, whether the minister, as 
 such, has a right to preside at a vestry meeting. 
 
 Sir John Nicholl, the Official Principal of the Archbishop 
 of Canterbury, observed : " The case is said to be a new one, 
 " so far as regards any express law, or any judicial decision 
 " on the subject. There is no statute, no canon, no 
 " reported judgment, either expressly affirming or expressly 
 ^^ negativing the right. It nevertheless may exist as a part 
 " of the common law of the land, as a part of the lex non 
 '^ scripta, which is of binding authority, as much in the 
 " ecclesiastical as in the temporal Courts. Indeed, the 
 " whole canon law rests for its authority in this country 
 " upon received usage ; it is not binding here propria vigore. 
 " Moreover, this Court upon many points is governed, in 
 '^ the absence of express statute or canon, by the jus tacito 
 " et iiliterato hominum consensu et moribus expressumP 
 
 '' It is true that generally the existence of this jus non 
 *^ scriptum is ascertained by reports of adjudged cases ; but 
 " it may be proved by other means : it may be proved by 
 " public notoriety, or be deducible from principles, and 
 " analogy, or be shown by legislative recognitions. Pub- 
 *^ lished reports of the decisions of the Ecclesiastical Courts 
 '^ (with one very recent exception) do not exist; and if they 
 " did, yet the particular right in dispute may never have 
 '' been so much as doubted or questioned before." Upon 
 this ])rinciple, m the time of James I., the King's Bench 
 refused to prohibit the Ordinary from compelling a woman 
 to be churched in a veil, because it was certified by divers 
 bishops to be the common custom of the Church of England.* 
 
 There is, therefore, a common law of the Church which 
 runs by the side of the statute law, and which must assist in 
 the construction of it. 
 
 It is often said that a rubric should be construed on the 
 same principles as an Act of Parliament ; but admitting this 
 to be so, it is obvious that there are peculiar difficulties incident 
 to the construction of a rubric which seldom, or in a much 
 less degree, beset the construction of an ordinary statute. 
 And it will appear from what has been already said, that the 
 right understanding of the rules supplied by the rubric for 
 the regulation of the services may often require a reference to 
 the sources not only of historical, but to a certain extent 
 theological knowledge. 
 
 There is one important rule applicable to the construction 
 of all instruments, namely, that the construer should endea- 
 
 * Vin. Abr. 17, p. 231, tit. "Prerogative of the King." " Ordinary aod 
 power of the Ordinary." Burns' Eccles. Law., Ed. Phiil., p. 318.
 
 74 
 
 vour to place himself in the position of the framer of the 
 instrument, and to gather from all the circumstances which 
 surrounded him at the time when he framed it, and from the 
 context of other portions of the instrument, what the real 
 meaning and intention was, if the language which he has 
 used have left that meaning and intention doubtful or 
 obscure. 
 
 In the case of Escott v. Mastin (4 Moore's Eeports, P. C, 
 p. 323), in which a question as to the lawfulness of baptism, 
 administered by a layman with water and the invocation of 
 the Trinity, was mooted, the Lords of the Privy Council 
 observed as follows : — 
 
 " The 68th canon being that upon which this proceeding 
 " is grounded, it is necessary to consider what the law was at 
 " the date of the canon, the year 1603. Without distinctly 
 " ascertaining this, we cannot satisfactorily determine what 
 " change the rubric of 1661, adopted into the 13th and 
 " 14th Charles II. cap. 4., made, and in what state it left 
 " the law on this head ; because it is very possible that the 
 " same enactment of a statute, or the same direction in a 
 " rubric, bearing one meaning, may receive one construction 
 *^ when it deals for the first time with a given subject-matter, 
 " and have another meaning and construction when it deals 
 " with a matter that has already been made the subject of 
 " enactment or directioli ; and this is most specially the 
 " case where the posterior enactment or direction deals with 
 " the matter without making any reference to the prior 
 " enactment or direction. Still more it is necessary to note 
 " the original state of the law, when it is the common law 
 ^' that comes in question, as well as the statute. 
 
 " The words are plainly directory, and do not amount to 
 " an imperative alteration of the rule then subsisting. If 
 " lay baptism was valid before the new rubric of 1661, there 
 " is nothing in that rubric to invalidate it. Generally 
 " speaking, where anything is established by statutory pro- 
 " visions, the enactment of a new provision must clearly 
 " indicate an intention to abrogate the old, else both will 
 " be understood to stand together if they may. But, more 
 " especially, where the common law is to be changed — and, 
 '' most especially, the common law which a statutory pro- 
 " vision had recognized and enforced — the intention of any 
 " new enactment to abrogate it must be plain to exclude a 
 " construction by which both may stand together. This 
 " principle, which is plainly founded in reason and common 
 " sense, has been largely sanctioned by authority. The 
 " distinction which Lord Coke takes in one place between 
 " affirmative and negative words, giving more effect to
 
 ^5 
 
 the latter (Coke, Littleton, 115, a), has sometimes been 
 '^ denied, at least doubted, (W. Jones, 270, Lovelace's case, 
 *' before the Windsor Forest Court, in 1632, in which 
 '' there is a dictum of Lord Chief Justice Richardson,) 
 *^ Mr. Hargrave thinks upon a misapprehension (Note 154). 
 *^ But the rule which is laid down in 2nd Inst., 200, has 
 ^^ been adopted by all the authorities, that ' a statute made 
 " ' in the affirmative, without any negative expressed or 
 " ' implied, doth not take away the common law.' So 
 " Gomyns Digest, Parliament, R. 23 ; and he cites the case 
 " Le Jure Ecclesiastico, in 5th Rep. 5, b, which lays down 
 " the rule in terms." 
 
 Let me apply this rule to the subject before me. The 
 first Prayer Book of Edward VI. contains only one pro- 
 hibition, the Elevation of the Blessed Sacrament; but it 
 contains various directions respecting the articles to be used 
 in the administration of the Holy Communion. It has been 
 pointed out that the enumeration of these articles could 
 not be exhaustive, inasmuch as the indispensable article of 
 '' a fair linen cloth " is omitted from it. 
 
 The argument is, I think, valid : the officiating priest 
 must have supplied this article, and the legislature must 
 have intended him to supply it. 
 
 He must have looked to an unwTitten use, the foundation 
 of a common law for the Church, not less than for the State. 
 
 Just as much as it must have intended by the rubric in 
 our present Prayer Book : ^^ The priest shall then place 
 ^' upon the table so much bread and wine as he shall think 
 " sufficient," that there should be a table or place from 
 which the elements should be then brought ; and therefore 
 the Judicial Committee of the Privy Council, reversing the 
 sentence of the Consistory of London and the Court of 
 Arches, decided that the Credence Table, which supplied this 
 want, was a lawful ornament. Those who compiled the first 
 Prayer Book of Edward VI. were not inventing a ritual for 
 the first time, but were constructing one from the various 
 service books, some English and some foreign, which they 
 had before them. This ritual was to be placed in the hands 
 of persons conversant with the older service books ; and it 
 seems highly unreasonable to suppose that it was not 
 competent to the priest to supply any accidental omission 
 in the new ritual by a reference to the previously existing 
 usage and practice. In the same way, in the Sarum Missal 
 no mention is to be found of the two lights to be placed 
 upon the altar, but there is no doubt that the constitution 
 which ordered those two lights was legally binding upon, 
 and must have been a part of the fm'niture of, those churches
 
 76 
 
 which adopted the use of Saruin, at least in the province of 
 Canterbury. Another illustration is furnished by the very 
 remarkable fact that the second Prayer Book of Edward VI. 
 omitted all reference to the manual acts, ordered in the first 
 and last Prayer Book, attending the consecration of the Holy 
 Elements ; and that during the whole period which elapsed 
 between the date of the second Prayer Book in 1552 and 
 that of the present Prayer Book in 1661, the officiating priest 
 was left without any direction upon this subject in the 
 Prayer Book which he was to use. Now, one of two con- 
 sequences must follow : either the cup was never taken in 
 the hand, the bread never broken, as at present, or these 
 manual acts were done without any specific order in the 
 Prayer Book, as a matter of recognized usage and custom. 
 No proof has been laid before me, and I can find none, as to 
 the omission of these necessary acts during a period of more 
 than a century, and I think the inference that they must 
 have been still practised is reasonable and sound. 
 
 And in this opinion I am strengthened by observing that 
 at the Savoy Conference the Dissenters objected, " that the 
 '^ manner of the consecrating of the elements is not here " 
 (i.e., in the consecration prayer) " explicite and distinct 
 " enough, and minister's breaking of the bread is not so 
 " much as mentioned." The bishops replied by conceding 
 " that the manner of consecrating the elements be made 
 " more explicit and express," which was the origin of our 
 present rubric. — {Cardwell, Conferences, pp. 321, 363.) 
 
 The opinion of Bishop Cosin (vol. 5, p. 65, ed. 1854), 
 a high authority upon this subject, appears to me sound. 
 " The book " (he says) " does not everywhere enjoin and 
 " prescribe every little order that should be said or done, 
 '' but takes it for granted that people are acquainted with 
 " such common and things already used as such. Let 
 
 " the Puritans, therefore, give over their endless cavils, and 
 " let ancient custom prevail, the thing which our Church 
 " chiefly intended in the review of this service." This 
 reasoning, therefore, brings me to the conclusion, that from 
 the mere silence of the rubric a positive prohibition cannot 
 in all cases be inferred. 
 
 Something more is required to render the article supplied 
 illegal. For instance, the mention of the article in a former 
 Prayer Book, and the omission of it in the present, may 
 furnish a presumption that it was intentionally rejected, even 
 when it be in itself innocent, or apparently expedient. Or 
 the article must have, as has been already observed, some 
 necessary connection with a use inconsistent with the
 
 77 
 
 principles upon which the formularies of the Church are 
 founded. 
 
 I must repeat that the rubrics with respect to deco- 
 rations and furniture of the church are not exhaustive. This 
 point has been decided by the Judicial Committee of the 
 Privy Council. They allowed on this principle the use of 
 the cross and the credence table and the various coloured 
 clothes for the Holy Table. They allowed also the use of a 
 moveable ledge for the pm^pose of holding candlesticks upon 
 the Holy Table. This question came before their lordships 
 as a corollary to their principal decision on the Knightsbridge 
 Church cases. It was contended that the monition of the 
 Court with respect to St. Barnabas Church had not been 
 obeyed as to the Holy Table or as to the cross. 
 
 The act on petition alleged, that the monition was still in 
 part uncomplied with in the following particulars : — First, 
 that the metal cross which was standing in the church or 
 chapel, on or attached to the super-altar, on the stone altar, 
 which formerly stood therein prior to the delivery of the 
 judgment of the Judicial Committee on the 21st of March 
 1857, was then placed on the sill of the great eastern window 
 of the church or chapel of ease of Saint Barnabas, above the 
 table then used as a Communion Table in the church or 
 chapel. Second, that the table which had been substituted 
 in the church or chapel for the stone altar which formerly 
 stood therein was not a flat table, but had an elevation or 
 structure placed thereon, so as to resemble what is generally 
 known and described as a super-altar in Roman Catholic 
 churches or chapels. 
 
 The answer on behalf of the Hon. and Rev. Robert 
 Liddell and the then Chapel wardens to this act on petition, 
 denied that the monition was in any part uncomplied with, 
 and pleaded ; first, that the metal cross which was on the 
 27th of March 1857 standing in the church or chapel of 
 Saint Barnabas (attached to the ledge of wood at the back 
 of the stone altar, which then stood in the chancel of the 
 church or chapelj was at the present time placed on the sill 
 of the centre compartment of the eastern window of the 
 chancel of the church or chapel, five feet ten inches above the 
 surface of the Communion Table standing there, and wholly 
 disconnected therewith ; secondly, that the table which had 
 been substituted in the church or chapel for the stone altar 
 which formerly stood therein was a flat moveable table of 
 wood ; and that the elevation or structure alleged in the 
 second article of the act on petition as placed thereon was 
 simply a moveable ledge of wood placed in order that two 
 candlesticks might stand thereon at the back of the table.
 
 78 
 
 and that the ledge was always raised up before the celebra- 
 tion of the Lord's Supper, in order that the decree of the 
 Court might be complied with, namely, that a fine linen 
 cloth should cover the Communion table at the time of the 
 ministration of the Lord's Supper, and that the cross was in 
 the church or chapel at the time of the consecration thereof, 
 and then formed one of the ornaments of the church or 
 chapel. 
 
 Their Lordships were of opinion, " that no disobedience, 
 *^ no impropriety, no irregularity, has been established ; and 
 " that the present application, therefore, failed/' ^ 
 
 In the same spirit, usages not prescribed by the Prayer 
 Book during the service have been allowed, — such as turning 
 to the east while the creeds are read, the '' Glory be to 
 Thee, Oh Lord '' before the reading of the Gospel, and the 
 expression of thanks after the reading of it, the use of 
 hymns — a use perhaps not only not ordered, but contrary to 
 the order of the Prayer Book ; and an inscription on a tomb- 
 stone of " pray for the soul " of a departed person has been, 
 by express judicial decision, pronounced not to be "^ con- 
 " trary to the articles, canons, constitutions, doctrine, and 
 " discipline of the Church." — {Breeks v. Woolfrey, 1 Curteis 
 Kep., 880.) 
 
 And here I will notice what I may call the churchwarden 
 argument. It has been said that one test of the legality of 
 ornaments is whether the churchwardens can or cannot be 
 compelled to provide them. I am of opinion, however, that 
 this is not a conclusive test. The law upon this subject was 
 well and clearly laid down by Dr. Lushington,t — namely, 
 that there are two classes of expenses for parochial purposes ; 
 one, necessary expenses, which the churchwardens may defray 
 of their own authority out of a rate, without the sanction of 
 the vestry ; another, expenses not absolutely necessary, a class 
 which requires, if they are to be defrayed out of a rate, the 
 previous sanction of the vestry. Under this latter category 
 would fall all expenses incurred for furniture of a decorative 
 kind, which would also require the sanction of the Ordinary. 
 
 The Special Charges considered. 
 
 Having thus considered the principles of law which ought 
 to guide me in adjudicating the charges preferred against the 
 Reverend Defendants in the cases before me, I will now 
 
 * Judgment delivered by Lord Justice Knight Bruce, 14th June 1861, on 
 appeal to the Judicial Committee of the Privy Council from the Arches Court 
 of Canterbury. The Hon. and Rev. Robert Liddell, William Parkes, and 
 George Evans, Appellants, and James Beal, Respondent. 
 
 t 1 Bums' Ecci. L., p. 388 a.—ed. Phillimore : « Gathercole v. Wade."
 
 consider and pronounce judgment upon each individual 
 charge, which, for the sake of convenience, I will arrange in 
 the following manner : — 
 
 First, the Elevation of the Blessed Sacrament, including 
 the Kneeling ; 
 
 Secondly, the use of Incense during the administration of 
 the Holy Communion ; 
 
 Thirdly, the Mixing the Water with the Wine during the 
 administration of the Holy Communion ; 
 
 Fourthly, the special charges against Mr. Simpson ; 
 
 Fifthly, the use of Lights during the administration of the 
 Holy Communion. 
 
 Elevation ; as to Mr, Mackonochie, 
 
 Srd Article. — The third of the articles in this suit charges 
 the Defendant, " That he, the Defendant, had in his said 
 '' Church, and within two years last past, to wit, on Sunday 
 ^' the 23d of December, on Christmas Day last past, and on 
 " Sunday the 30th December, all in the year 1866, during 
 " the prayer of consecration, in the order of the adminis- 
 " tration of the Holy Communion, elevated the paten in a 
 " greater degree than by merely taking the same into his 
 " hands, as prescribed by the Book of Common Prayer, and 
 " in a greater degree than is necessary to conform with the 
 ^' requirements of such book, and permitted and sanctioned 
 " such elevation ; and taken into his hands and elevated the 
 '' cup during the prayer of consecration aforesaid in a 
 '' manner contrary to the said statutes, and to the said Book 
 "^ of Common Prayer, and permitted and sanctioned the 
 " cup to be so taken and elevated ; and knelt or prostrated 
 " himself before the consecrated elements during the prayer 
 " of consecration, and permitted and sanctioned such kneel- 
 *^ ing or prostrating by other clerks in holy orders." 
 
 Answer. — To this article the Defendant has answered, 
 " That whilst he admits that he, the Defendant, did on the 
 " said two Sundays, and on Christmas Day, during the 
 " prayer of consecration, kneel, and sanction kneeling by other 
 " clerks, before the Lord's Table, he denies that his said party 
 " did on the said two Sundays, and on the said Christmas 
 '' Day, kneel or prostrate himself before the consecrated 
 " elements, or permit and sanction such kneeling or pros- 
 " tration by other clerks in holy orders, as in the 3rd Article 
 '^ pleaded. And he further alleges that whilst he admits 
 ^^ that he did on the said two Sundays and Christmas Day, 
 '^ in the said 3rd Article mentioned, elevate and sanction 
 " the elevation by other clerks of the paten and cup above
 
 80 
 
 " his head, as in the said 3rd Article pleaded, yet that 
 ^^ such elevation of the paten and cup has been wholly dis- 
 " continued by the said Defendant during the administration 
 '^ of the Holy Communion ever since the said 30th December 
 " 1866, and long prior to the institution of this suit; that 
 " such practice was discontinued in consequence of legal 
 *' advice, and in compliance with the expressed wish of the 
 " Lord Bishop of the diocese of London, and with a resolu- 
 " tion of convocation, as was vvell known to the promoter of 
 ^^ this suit before he instituted the same." 
 
 Ath Article.— The fourth Article alleges *^ that such eleva- 
 " tion of the cup and paten, and such kneeling and prostrat- 
 " ing, are severally unlawful additions to and variations from 
 '^ the form and order prescribed and appointed by the said 
 *^ statutes, and by the said Book of Common Prayer and 
 ''' administration of the sacram.ents and other rites and 
 *' ceremonies of the Church, and are contrary to the said 
 " statutes, and to the 14th, 36th, and 38th of the said con- 
 " stitutions and canons, and also to an Act of Parliament 
 " passed in a session of parliament holden in the 13th year 
 " of Queen Elizabeth, cap. 12., and to the 25th and 28th of 
 " the articles of religion therein referred to." 
 
 Ansiver. — The Defendant to this article answers, " That 
 ^' he denies that the elevation of the paten and the taking 
 " and the elevation of the cup so disconthiued as aforesaid, 
 '^ and the kneeling and prostrating charged in the said third 
 " article, are severally unlawful additions to and variations 
 ^* from the form and order prescribed and appointed by the 
 '^ said statutes, and by the said Book of Common Prayer and 
 " administration of the sacraments and other rites and cere- 
 " monies of the Church, or that they are contrary to the said 
 *' statutes, and to the 14th, 36th, and 38th of the said con- 
 ^* stitutions and canons, and also to an Act of Parliament 
 " passed in a session of parliament holden in the 13th year 
 '' of Queen Elizabeth, cap. 12., and to the 25th and 28th 
 " articles of religion therein referred to, as in the 4th article 
 « alleged." 
 
 The elevation of the Blessed Sacrament was not incorpo- 
 rated formally into the law of the Western Church before 
 the beginning of the 13th century. The account given 
 by Cardinal Bona is clear and concise (Rerum Liturgicarum, 
 lib. II., cap. 3, § 2) : " Latini peracta consecratione, Graeci 
 '* paulo ante communionem, ut ex Liturgiis Jacobi, Basilii, 
 " et Chrysostomi manifestum est, corpus Dominicum et 
 " calicem elevant, ut a populo adoretur. Idque ab antique 
 ^' tempore fieri solitum indicant scriptores Grteci." He then 
 cites a variety of authorities in support of this position, and
 
 81 $ 
 
 mentions the introduction of the custom of ringing a bell 
 at the time of the elevation, at first as it should appear m 
 order to excite the devotions of the faithful, and not for the 
 purpose of the worship of the Host (p. 349). 
 
 It was not till the year 1217, during the Papacy^ ot 
 Honorlus III., that this peculiar doctrine of elevation 
 became part of the canon law. 
 
 In lib. III., tit. XLII., Decret. Greg., cap.;X.,the decree 
 upon the subject is as follows : 
 
 « Sane, cum olim {ut infra). Ne propter incurlam Sacer- 
 " dotum divlna indlgnatio gravius exardescat, districte 
 *' prsecipiendo mandamus, quatenus a Sacerdotibus Eucha- 
 '' ristia in loco singulari, mundo et signato semper honorifice 
 " collocata, devote ac fideliter conservetur. Sacerdos vero 
 " quilibet frequenter doceat plebeai suam, ut, cum m 
 " celebratione missarum elevatur hostia salutaris, se reve- 
 '' renter inclinet, idem faclens, cum earn defert Presbyter 
 *f ad infirmum. Quam in decentl habitu superposlto mundo 
 '' velamlne ferat, et referat manifeste ac honorifice ante 
 " pectus cum omni reverentia et timore, semper lumine 
 " prjecedente, cum sit candor lucis geternos, ut ex hoc apud 
 " omnes fides et devotio augeatur. Pra^lati autem. hujus- 
 " modi mandati graviter punire non differant transgressores : 
 " si et ipsi dlvinam et nostram volunt effugere ultionem."* 
 
 William, Bishop of Paris, soon after the beginning of the 
 13th century, made an order that, "Sicut alias statutmn fuit, m 
 «^ celebratione missarum, quando corpus Christ! elevatur, m 
 « ipsa elevatione vel paulo ante campana pulsetur, ut sic 
 «« mentes fidelium ad orationem excitentur." 
 
 And Archbishop Peccham, who was consecrated In the 
 
 . year 1278 and died in the year 1292, appears to have first 
 
 introduced into England this custom by the following con- 
 
 stltutionf : . r^i • • 
 
 " Altissimus," et infra. " In elevatione corporis Lhristi . 
 " ab una parte ad minus pulsentur campanse, ut populares, 
 " qui celebration! missarum non valent quotldie^ interesse, 
 " ubicunque fuerlnt, sive in agris sive in domibus, flec- 
 " tant genua, indulgentias concessas a pluribus episcopis 
 " habituri." 
 
 * The title of the chapter is :— " Eucharistia debet niunde servari, et in 
 " ejus elevatione et delatione populus debet se inclinare : et cum defertur ad 
 " infirmum, debet deferri in decenti habitu, et cum lumine, transgressores 
 " vero graviter sunt puniendi." 
 
 + The title of this constitution is:—" In elevatione corporis Christi pulsentur 
 *' campanEe, \\t officio interesse nequeuutes, saltem genua flectant. _Nec 
 " ministretur coi-pus Domini, nisi eis quos constat confessos esse, et parochianos 
 " ejus, in qua recipiant, ecclesia ; nisi pemiissionem habeaut, aut peregriui 
 " sint, aut necessitas urgeat." 
 
 P
 
 82 
 
 Lyndwood (writing, it is to be observed, about 1430) has 
 this gloss : '^ Elevatione^ quae fit ut popidus illud adoret." 
 
 This passage appears to me to dispose of the argument 
 addressed to me by the leading comisel for Mr. Simpson, 
 " that it had been the invariable practice of the Church of 
 ^' England not to connect adoration with elevation." 
 
 Nor am I satisfied by the difference between the canon of 
 the Sarum use and that of the Koman Missal upon this 
 point, that at the time of the Reformation the adoration was 
 separated from the elevation of the Host. The true propo- 
 sition is that the original practice, in England as in other 
 countries, had been to stir up the devotion of the people to 
 God by the elevation of the Blessed Sacrament, until in this, 
 as in so many other instances, the Church, or perhaps more 
 strictly speaking the Curia, of Rome introduced an un- 
 warrantable innovation upon an ancient and laudable usage. 
 
 The first prohibition of this custom, of elevating the Host 
 in order that it might be adored, is to be found in the Order 
 of the Communion of Edward VI. which was published in 
 1548, and preceded the first Book of Common Prayer. The 
 last " note " to that order, after providing for the case in 
 which it has become necessary to consecrate more wine than 
 had been originally consecrated, contains these words, " and 
 " without any levation or lifting up." This prohibition 
 would seem from the context to be limited to the case of an 
 additional consecration of wine. In the first Prayer Book, 
 after the prayer of consecration, follow these words : " These 
 '' words before rehearsed are to be said, turning still to the 
 " altar, wdthout any elevation, or showing the sacrament to 
 " the people." 
 
 The Council of Trent, by the 6th canon of the 13th 
 session, passed the 1 1th of October 1561, decrees : " Si quis 
 " dixerit, in sancto eucharistiae sacramento Christum 
 *' unigenitum Dei Filium non esse cultu latria?, etiam 
 " externo, adorandum, atque ideo nee festiva peculiar! 
 " celebritate venerandum, neque in processionibus secundum 
 " laudabilem et universalem ecclesiae sanctae ritum et con- 
 " suetudinem solenniter circumgestandum, vel non publice, 
 " ut adoretur, populo proponendum, et ejus adoratores esse 
 ^^ idololatras, anathema sit." 
 
 The liberal mind and strong sense of Luther appear in his 
 treatment of this question of elevation. In the '' Formula 
 " Missae et Communionis " for the church at Wittemberg 
 he gives this direction : " (IV.) Finita benedictione chorus 
 " cantet sanctus et sub benedictus elevetur panis et calix, 
 " ritu hactenus servato, vel propter infirmos qui hac repen- 
 " tma (mutatione) hujus insiguioris in mifsa ritiis forte
 
 83 
 
 ^^ ofFendentur, prcssertim uhi per condones vernaculas docti 
 " fuerint quid ed petatur elevationeP (Cod. Liturg. 11. 87, 
 ed. Leipsic, 1848.) Daniel, the learned German editor of 
 the Codex Liturgicus, observes, that the elevation was for a 
 long time not only tolerated but approved of and defended by 
 Luther. He thought it right that v^hen the Sacrament was 
 lifted up a bell should ring ; for the priest and the bell spoke 
 the same language, namely, " Hearken, ye Christians, and 
 " behold, then take and eat, take and drink, this is the body 
 " and blood of Christ." Afterwards Luther placed the ele- 
 vation " inter adiaphora quse possunt servari vel omitti ad 
 " habitum ecclesiarum," and discontinued it in the church at 
 Wittemberg. The rite appears to have prevailed during the 
 sixteenth and seventeenth centuries in the churches of 
 Sweden and Denmark. 
 
 By the 28 th of the Thirty -nine Articles, which became 
 part of the Statute Law in 1571, though passed in Convo- 
 cation with the consent of the Crown in 1562, it is declared, 
 " That the Sacrament of the Lord's Supper was not by 
 " Christ's ordinance reserved, carried about, lifted up, or 
 " worshipped." 
 
 It is true that these words contain a declaration only, 
 and no specific order; but looking to the spirit as well as 
 to the letter of our present Prayer Book, as well as to 
 this Article, and to the documents which illustrate the 
 early period of the Reformation, it appears to me clear that 
 those who guided the Church of England through this 
 process of restoration to primitive antiquity were of opinion 
 that the elevation was so connected with the repudiated | 
 doctrine of Tran substantiation, as distinguished from the I 
 Real Presence, that it ought not to be suffered to remain. 1 
 And I am confirmed in this opinion by the authority of some 
 of the greatest divines in our Church, of whom I will only 
 cite two ; one, the learned Grabe ; the other, who received 
 the thanks of Christendom for his defence of the Nicene 
 Creed, — Bishop Bull. 
 
 The former says, " But if it should be asked, of what use 
 '^ the said form, with such annotations, can be at present, 
 " when it is out of use, 1 answer, that it will serve, at least 
 " to show, to the honour of our forefathers, the first reformers 
 " of this Church, how near they, concerning the celebration 
 " of that most holy Sacrament, kept to the primitive institu- 
 " tion of it by our blessed Saviour, and to the practice of 
 '^ His Holy Apostles and the first Apostolical Churches, 
 *^ although they changed and threw out many abuses and 
 ** corruptions of this sacred ordinance which were crept in 
 '^ afterw^ards, and at last established by Popish decrees and 
 
 F 2
 
 84 
 
 " councils of later ages. Such was, In the whole, the use 
 
 " of an unknown tongue in this holy office 
 
 *^ And not to mention the elevation of the consecrated 
 " elements to be worshipped by priest and all people 
 '^ as Jesus Christ Himself, both God and man in person, 
 " whom the Church of Rome believeth to be substantially 
 " and wholly present under the outward figures of bread 
 " and wine." {Grahe, M. S. Adversaria.) 
 
 Bishop Bull, in a portion of his answer to the Bishop of 
 Meaux, who had expressed his surprise that he was not a 
 Romanist as well as a Catliolic, says, " Come we now to 
 '^ the principal part of the Christian worship, the holy sacra- 
 ^^ ment of the Eucharist. How lamentably hath the Church 
 '' of Rome vitiated the primitive institution of that most 
 ^' sacred rite. She hath taken from the laity the blessed 
 " cup, contrary to our blessed Saviour's express command 
 *^ as expounded by the practice of the apostles, and of the 
 " universal church of Christ for the first ten centuries, as 
 " hath been above observed. 
 
 " All the learned advocates of the Roman Church, with 
 " all their sophistry, have not been able to defend her in 
 " this matter from m.anifest sacrilege, and a violation of the 
 " very essentials of the sacrament, as to the laity adminis- 
 '^ tered, nor can they prove it so administered to be a 
 " perfect sacrament. He that would see this in a short 
 '' compass fully proved, and all the weak evasions of the 
 " Romanists obviated, may consult our learned Bishop 
 '^ Davenant. Besides, the whole administration of it is so 
 *' clogged, so metaphorized and defaced by the addition of 
 " a multitude of ceremonies, and those some of them more 
 *•' becoming the stage than the table of our Lord, that if the 
 " blessed apostles were alive and present at the celebration 
 *^ of the mass in the Roman Church they would be amazed 
 '^ and wonder what the meaning of it was ; sure I am they 
 ^^ would never own it to be that same ordinance which they 
 " left to the churches. 
 
 " But the worst ceremony of all is the elevation of the 
 '^ Host to be adored by the people as very Christ himself 
 " under the appearance of bread, whole Christ, 0taj/^pw7ro?, 
 *^ ' God and man,' while they neglect the old sursum corda, 
 " the lifting up of their hearts to heaven where whole 
 '' Christ indeed is." 
 
 The kind of elevation which it is charged that at one time 
 Mr. Mackonochie practised, and as to which witnesses were 
 examined before me, amounts upon the evidence to the 
 following acts, that after the consecration, both of the bread 
 and of the wine, he elevated the paten and the cup respec-
 
 85 
 
 lively for an appreciable time^ after whicli there was a pause 
 before the service was coDtiimed ; this evidence was taken 
 at the beginning of the cause ; but during the progress of 
 the argument, at the desire and with the consent of both 
 counsel, Mr. Mackonochie w^as examined by me upon the 
 single point, whether when the elevation was made his face 
 was or w^as not towards the people, Mr. Mackonochie said, 
 " I do not turn round to the people, and I never have done 
 *^ so during any time of the consecration prayer."* 
 
 This elevation Mr. Mackonochie asserts, and it is not 
 denied, that he discontinued after conference with his 
 diocesan, and upon the other grounds to which I have 
 ah'eady referred, before the institution of this suit. 
 
 I am very glad that he did so, because in my judgement 
 that kind of elevation was unlawful, and I must and do 
 admonish Mr. Mackonochie not to recur to it. 
 
 His present practice is not complained of, and some eleva- 
 tion the rubrics of the present communion service must con- 
 template w^hen they order as follows, " Here the priest shall 
 ^' take the paten into his hands ;" that is, into both his 
 hands; subsequently to which he is ordered to break the 
 bread. So also when he is directed to take the cup into his 
 band there must be some elevation from the Holy Table. 
 
 Elevation ; as to Mr. Simpson. 
 
 It Is alleged In the 5th article filed against Mr. Simpson 
 in the suit of Flamank v. Simpson, that he, Mr. Simpson, 
 has, within two years last past, in the said parish of East 
 Teignmouth, in the public celebration of the Holy Commu- 
 nion, after the Prayer of Consecration, raised the paten with 
 both hands over his head, and the cup in like manner. 
 And that such elevations of the paten and cup are unlawful 
 additions to and alterations of the form and order prescribed 
 and appointed by the said Book of Comuion Prayer and 
 Administration of the Sacrament, and other rites and cere- 
 monies of the Church, and are contrary to the said statute 
 law, constitutions, and canons. 
 
 Mr. Simpson, In the fourth answer filed by him, denies 
 that he has, as in the said 5th article alleged, within two 
 
 * I have said " with the consent and desire of both counsel," because such 
 was the fact ; but if Mr. Mackonochie was by law an incompetent witness 
 .their consent in a criminal case would not render his evidence admissible ; 
 but I venture to think that he was a competent witness, and am embolderei 
 to hold this opinion, though it be at variance with that of my predece.'-sor, in 
 consequence of the observation made by the Lords of the Privy Ccuncil 
 in "Bemey v. The Lord Bishop of Ivorwich," a casein which Judgement was 
 delivered on the 28th February 1867.
 
 86 
 
 years last past, so raised the paten with both hands over his 
 head, and the cup in like manner. But he says that he has, 
 within the time aforesaid, in the reading the Prayer of Con- 
 secration so raised the paten on pronouncing the words 
 " Do this in remembrance of me ;" and he has so raised the 
 cup on pronouncing the words " This is my blood of the 
 " New Testament which is shed for you and for many, for 
 " the remission of sins." 
 
 It clearly follows, from what I have said as to Mr. Mac- 
 konochie, that the elevation practised by Mr. Simpson is 
 unlawful, and must be discontinued. 
 
 Kneeling. 
 
 With respect to the charge against Mr. Mackonochie of 
 kneeling or prostration before the Eucharist, I observed 
 during the course of the argument that no charge of 
 adoration of the Holy Sacrament itself, or of our Lord's body 
 being present after a corporal manner in the Holy Sacrament, 
 was contained in these Articles ; that if it was intended to 
 charge Mr. Mackonochie with either kind of adoration, the 
 rules of pleading in criminal cases in this Court would have 
 required that such adoration should have been distinctly 
 and plainly averred. 
 
 The arj>:ument before me was confined to the allegation of 
 improper or excessive kneeling ; the evidence as to the fact 
 was very far from being clear ; Mr. Mackonochie was asked 
 no question himself upon the subject. 
 
 Mr. Beames said, that after the elevation of the cup, 
 Mr. Mackonochie prostrated himself on his knees with bis 
 head to the ground, and then that he knelt immediately 
 after the cup was replaced, and that there was the same 
 kneeling after the elevation of the paten. It was clear, 
 however, from the evidence of this witness that Mr. Mac- 
 konochie remained on his knees, and that his head did not 
 touch the ground, and that he did not really prostrate him- 
 self, supposing that such a gesture of devotion to be, 
 which I do not pronounce it to be, illegal. 
 
 The only other witness, the Reverend Henry Malins, 
 deposed that the clergy, already kneeling, threw their bodies 
 forwards, and that the consecrating clerk knelt in the middle 
 of the prayer, and then went on with the prayer. But on 
 further examination he said that he was behind him all the 
 time, that he could not in fact say that he prostrated himself, 
 but to use his own words " there was a somewhat excessive 
 *•' bending forwards." He said he was kneeling himself at 
 the time, and that it was his own practice, when not assisting, 
 to kneel during the prayer of consecration.
 
 It is true that the Rubric does not give precise directions 
 that the celebrant himself should kneel at the times when it 
 appears that Mr. Mackonochie does kneel ; but I am very far 
 from saying that it is not legally competent to him, as well 
 as to the other priests and to the congregation, to adopt this 
 attitude of devotion. It cannot be contended that at some 
 time or other he must not kneel during the celebration, 
 although no direction as to his kneeling at all are given by 
 the Rubric. . 
 
 It is observable that at the Savoy Conference the Puritans 
 asked to have it considered " Whether it will not be fit to 
 " insert a rubrick touching kneeling at the communion, 
 " that is, to comply in alf humility with the prayer which 
 '^ the minister makes when he delivers the elements." 
 
 No notice of this request was taken by the bishops unless 
 it be considered to be included in their concession, " That the 
 « general confession at the communion be pronounced by 
 " one of the ministers, the people saying after him, all 
 '' kneeling humbly upon their knees." {CardwelVs Con- 
 ferences, pp. 275, 363.) 
 
 Moreover, in my opinion, if Mr. Mackonochie has com- 
 mitted any error in this respect, it is one which should not 
 form the subject of a criminal prosecution, but belongs to 
 the category of those cases which should be referred to the 
 Bishop, in order that he may exercise thereupon his discre- 
 tion, according to the Rubric to which I have already 
 , referred. 
 
 Incense. 
 The charge against Mr. Mackonochie as to the use of 
 incense is twofold; the first part relates to what is tech- 
 nically called '' censing persons and things," and is as 
 
 follows: 
 
 1th Article.— ThQ 7th article alleges, '^that the said 
 " Defendant has in his said Church, and within two years 
 « last past, to wit, on Sunday the 23rd December, on 
 " Christmas Day last past, and on Sunday the 30th 
 " December, all in the year 1866, used incense for censing 
 " ])ersons and things in and during the celebration of the 
 " Holy Communion, and permitted and sanctioned such use 
 '« of incense." 
 
 Answer. — And the Defendant in answer to this article 
 says, '' that he admits that he (the Defendant) on the Sunday 
 " the 23rd December, on Christmas Day last past, and on 
 «' Sunday the 30th December, used incense for censing 
 « persons and things in and during celebration of the Holy 
 " Communion, and permitted and sanctioned such use of
 
 88 
 
 incense;" but he alleges, " that ever shice the 30th 
 December 1866 he, the said Defendant, as was well 
 known to the promoter of this suit prior to the institution 
 thereof, desisted from so doing, and has ever since dis- 
 continued the said ceremony on being apprized by the 
 opinion of counsel that such usage was of a doubtful 
 legality, and that he has never since re-introduced the 
 said ceremony, as appears in the published address of the 
 said Defendant, dated January 1867, and exhibited and 
 appended to the articles brought in and admitted in the 
 cause." 
 
 I should here observe, that an objection was taken on 
 behalf of Mr. Mackonochie that this charge of censing 
 persons and things was not specified in the decree issued 
 under the Letters of Request, and therefore, that according 
 to the practice of this Court, it could not be preferred in the 
 articles. My learned predecessor overruled this objection, 
 and I thought it right, whatever my opinion might be, to 
 abide by his decision. 
 
 It appears that Mr. Mackonochie has discontinued, though 
 under protest, this particular use of incense, upon the same 
 grounds and for the same reasons that he discontinued the 
 elevation, and also before the institution of this suit. 
 
 The other part of the charge relates to another use of 
 incense, and is laid in the following words : 
 
 8^/i Article. — The 8th article alleges, " that the said 
 '' Defendant has in his said Church, and within two years 
 " last past, to wit, on Sunday the 13th day of January 
 *' A.D. 1867, vmlawfully used incense in and during the 
 " celebration of the Holy Communion, and permitted and 
 " sanctioned such unlawful use of incense." 
 
 Ansiver. — To this the Defendant iias answered, *' that he 
 " admits that he has in his said Church, to wit, on Sunday 
 " the 13th day of January A.D. 1867, caused and allowed 
 " incense to be burnt during the reading of the prayer 
 " of consecration, and afterwards until the time for the 
 '^ administration of the Communion to the people, and per- 
 '*' mitted and sanctioned such use of incense, but that he 
 '^ denies that he used the same unlaAvfully, or that such use 
 *^ is unlawful." 
 
 \}t]i Article. — The 9th article charges, '* that such uses of 
 ^* incense as in the two preceding paragraphs alleged are 
 *' severally an unlawful addition to and variation from the 
 ** form and order prescribed and appointed by the said 
 ** Statutes, and by the said Book of Common Prayer and 
 " administration of the Sacraments and other rites and
 
 89 
 
 " ceremonies of the Church, and are contrary to the said 
 " Statutes, and to the 14th, 36th, and 38th of the said 
 " constitutions and canons." 
 
 Answer, — The Defendant in his plea has answered, *' that 
 " he denies that such use of incense as in the 7 th and 8th 
 *^ articles alleged are severally an unlawful addition to and 
 '' variation from the form and order prescribed and appointed 
 '* by the said Statutes, and by the said Book of Common 
 " Prayer and administration of the Sacraments and other 
 " rites and ceremonies of the Church, and are contrary 
 " to the said Statutes, and to the 14th, 36th, and 38th of 
 " the said constitutions and canons, as in the 9th article 
 '^ allei^ed." 
 
 The objection is not taken to the general use of incense 
 for the purposes of ornament or fumigation of the Church, 
 for which purposes it appears to have been used at various 
 times since the Keformation, and especially by the saintly 
 Herbert to whom Mr. Coleridge referred : 
 
 " The country parson," Plerbert says, " hath a special care 
 " of his church, that all things there be decent and befitting 
 *' his name by which it is called. Therefore, first, he takes 
 '" order that all things be in good repair, as walls plastered, 
 " windows glazed, floor paved, seats whole, firm, and uniform, 
 " especially that the pulpit and desk, and communion table 
 " and font, be, as they ought, for those great duties that are 
 " performed in them. Secondly, that the Church be swept 
 " and kept clean, without dust or cobwebs, and at great 
 '' festivals strewed and stuck with boughs, and perfumed 
 " with incense. Thirdly, that there be fit and proper texts 
 " of Scripture everywhere painted, and that all the painting 
 '^ be grave and reverend, not with light colours or foolish 
 *' antics. Fourthly, that all the books appointed by 
 *' authority be there, and those not torn or fouled, but whole 
 *' and clean, and well bound ; and that there be a fitting and 
 " sightly communion cloth of fine linen, with a handsome 
 " and seemly carpet of good and costly stuff' or cloth, and all 
 " kept sweet and clean in a strong and decent chest, with a 
 " chalice and cover, and a stoop or flagon, and a basin for 
 " alms and offerings ; besides which, he hath a poor man's 
 " box conveniently seated to receive the charity of well 
 <^ minded people, and to lay up treasure for the sick 
 «' and needy. And all this he doth, not as out of necessity, 
 '' or as putting a holiness in the things, but as desirino- to 
 " keep the middle way between superstition and slovenliness, 
 " and as following the Apostle's two great and admirable 
 " rules in things of this nature ; the first whereof is, ^ Let
 
 90 
 
 '^ all things be done decently and in order;' the second, 
 " ' Let all things be done to edification.' " 
 
 (^Works of G. Herbert, vol. II. chap. xiii. p. 192. 
 Titles" A Priest to the TempUr) 
 
 The burning of frankincense, probably on account of the 
 nrateful odour which it emits, and the graceful form which it 
 assumes, may be traced, as an accompaniment of prayer, 
 thanksgiving, and sacrifice, to the very earliest antiquity. 
 All classical readers are aware of the /3w/ao? ^vi\^i^ of Homer,* 
 and of the ** centum ar« Sabjeo thure calentes.^f The use 
 of incense in the Jewish worship was divinely ordained.J 
 Nadab and Abihu were stricken with death because " they 
 " took either of them his censer and put fire therein, and 
 " put incense thereon, and offered strange fire before the 
 '^ Lord."§ And Aaron, when he " made an atonement for 
 " himself and his house," was directed to " take a censer full 
 " of burning coals of fire from the altar of the Lord." || 
 Solomon provided '^ censers of pure gold for the temple of 
 " the Lord." % 
 
 And it was truly urged that Zachariah was burning 
 incense according to the custom of the priest's office, in the 
 Temple of the Lord,** when he received the message from 
 the angel ; and that in many places in Holy Writ prayer is 
 symbolized by incense. It appears to have been very early 
 in use, though the exact date of it is uncertain, among the 
 Christians ; it is mentioned in the apostolical canons, and 
 there is no doubt that it is warranted by the authority of the 
 primitive Church. 
 
 It certainly was in use in the Church of England in the 
 time of King Edward the Sixth's first Prayer Book. The 
 visitation articles of Cranmer as to forbidding the censing to 
 certain images, &c., supplies one of the proofs of this fact. 
 On the other hand the use of it during the celebration of 
 the Eucharist is not directly ordered in any prayer book, 
 
 * Iliad, VIII. 48. f "^"'g- ^n. I. 420. 
 
 \ Incense. — Dictionary of the Bible. 
 
 liooking upon incense in connexion with the other ceremonial observances 
 of the Mosaic ritual, it would rather seem to be symbolical, not of prayer 
 itself, but of that which makes prayer acceptable, the intercession of Christ. 
 In Kev. viii. 3, 4, the incense is spoken of as something distinct from, though 
 offered with, the prayers of all the saints (Luke i. 10.), and in Rev. v. 8. it is 
 the golden vials, and not the odours or incense, which are said to be the 
 prayers of saints. Psalm cxli. 2. at first sight appears to militate against this 
 conclusion ; but if it be argued from this passage that incense is an emblem of 
 prayer, it must also be allowed that evening sacrifice has the same symbolical 
 meaning. 
 
 § Lev. X. 1. II Lev. xvi. 12. \ 1 Kings vii. 50, 
 
 ** St. Luke c. 1.
 
 91 
 
 canon, injunction, formulary, or visitation article of the 
 Church of England since the Keformation. Bishop 
 Andrew es, a very high authority, appears to have used it, 
 though in what way is not clear, in his own private chapel ; 
 and probably traces of the use of it may be found in the 
 private chapels of other bishops, and in the Eoyal Chapels. 
 
 It is not, however^ necessarily subsidiary to the celebration 
 of the Holy Communion, and it is not to be found in the 
 rubrics of the present Prayer Book, which describe with 
 considerable minuteness every outward act which is to be 
 done at that time. 
 
 To bring in incense at the beginning or during the cele- 
 bration, and remove it at the close of the celebration, of the 
 Eucharist, appears to me a distinct ceremony, additional and 
 not even indirectly incident to the ceremonies ordered by the 
 Book of Common Prayer. 
 
 Although therefore it be an ancient, innocent, and pleasing 
 custom, I am constrained to pronounce that the use of it by 
 Mr. Mackonochie in the manner specified in both charges 
 is illegal, and must be discontinued. 
 
 Mixing Water with the Wine. 
 
 Article 10.— The 10th article against Mr. Mackonochie 
 alleges, " that he, the Defendant, has in his said church, and 
 " within two years last past, to wit, on Sunday the 23rd day 
 " of December, on Christmas Day last past, on Sunday the 
 " 30th day of December, all in the year of our Lord 1866, 
 " and on 'Sunday the 13th day of January A.D. 1867, 
 '' during the celebration of the Holy Communion, mixed 
 '' water with the wine used in the administration of the 
 ^' Holy Communion, and permitted and sanctioned such 
 '^ mixing, and the administration to the communicants of 
 ^' the wine and water so mixed." 
 
 Answer. — The defendant admits this article to be true. 
 
 Article \\. — The Uth article states, " that such mixing 
 " and administration of the wine and water is an unlawful 
 '' addition to and variation from the form and order pre- 
 " scribed and appointed by the said statutes, and by the 
 '' said Book of Common Prayer and administration of the 
 ^' Sacraments and other rites and ceremonies of the Church, 
 " and is contrary to the paid statutes, and to the 14th, 20th, 
 '^ 21st, 36th, and 38th of the said constitutions and canons." 
 
 Answer. — The defendant has denied in his plea, "that 
 " such mixing and administration of the wine and water, as 
 " in the said 10th article alleged, is an unlawful addition to 
 " and variation from the form and order prescribed and ap- 
 «* pointed by the said statutes, and by the said Book of
 
 92 
 
 " Common Prayer, and administration of the Sacraments 
 " and other rites and ceremonies of the Church, and is 
 " contrary to the said statutes, and to the 14th, 20th, 2 1st, 
 ^* 36th, and o8th of the said constitutions and canons, as in 
 " the fc=aid 11th article alleged." 
 
 There is a similar charge against Mr. Simpson. 
 
 It appears that from a very early period — the precise date 
 is uncertain — a custom prevailed amongst Christians of adding 
 a very small quantity of Avater to the wine which forms one 
 element of the Blessed Sacrament. Tliis custom, whether 
 it arose from a belief that the v/ine used by the Jews at the 
 Passover, and by our Lord at the last Supper, was mingled 
 with Avater, or from some reason symbolical of His passion, 
 Is wholly unconnected with any Papal superstition, or any 
 doctrine which the Church of England has rejected. It has 
 the warrant of primitive antiquity and of the undivided 
 Church in its favour. 
 
 The whole subject will be found discussed with his usual 
 perspicuity and subtilty by Thomas Aquinas in the third 
 part of his Summa Theologica, quasstio 74, ^^ De materia 
 '' EiicharisticB quantum ad speciem ;" which is divided into 
 eiglit articles ; the sixth of which is, " Utrum sit admls- 
 " cenda aqua ;" the seventh, '' Utrum aqua sit de necessl- 
 " tate hujus sacramenti;" the eighth, " De quantltate aqua5 
 '•■ quae apponitur." With regard to the sixth, he decides 
 " that some water shall be mingled with the wine ; with 
 *' regard to the eighth, that it should be a very small 
 " quantity, " paululum aqua?," and for this reason, " quia 
 '* si tanta fieret apposltio aquae ut solverentur species vini, 
 *^ non posset peril ci sacrament um/' And in accordance with 
 this view, with regard to the seventh, it is Important to 
 observe that he decides, that '' aquae admlxtio non est de 
 " necessitate sacramentl." The mingling of Avater, therefore, 
 with the sacramental wine is clearly within that category of 
 ceremonies as to the adoption of which each branch of the 
 Cliurch has Its own liberty. 
 
 In our own Church this custom prevailed before the 
 Reformation ; and in the first order of the communion, 
 which preceded the first Prayer Book, the rubric directed 
 that the priest should '*' bless and consecrate the biggest 
 '* chahce or some fair and convenient cu]) or cups full of wine 
 '* with some water put unto it;" and the rubric to the Com- 
 mmiion Service of the first Prayer Book directs that the 
 minister shall '' take so much bread and Avine as shall suffice 
 *' for the persons a])pointed to receive the Holy Communion " 
 " and putting the ivine into the chalice or else
 
 '' in some fair and convenient cup prepared for that use (if 
 ^' the chalice will not serve), putting thereto a little pure 
 " and clean loater, and setting both the bread and loine upon 
 " the altar/' It is clear, therefore, that under the word 
 *^ wine " might be comprehended the wine and water ; and 
 in a subsequent rubric at the end of the service the direc- 
 tion is, that the pastors and curates shall find at their costs 
 and charges "sufficient bread and wine for the Holy 
 " Communion." 
 
 In all subsequent Prayer Books the mention of water is 
 omitted ; perhaps from the omission in the second Prayer 
 Book no argument unfavourable to the use of water could 
 fairly be drawn, as no manual acts of consecration are 
 prescribed in that book. But in the present Prayer Book 
 the manual acts are advisedly specified with great cli,stinct- 
 ness and particularity ; exact directions are given Avhen the 
 priest shall take into his hands the bread and the wine, 
 when he shall place them on the table, and how he shall 
 administer them ; and I nmst bear in mind that the com- 
 pilers of our present Prayer Book had before them the first 
 Prayer Book of Edward VI., and carefully considered the 
 rubrics which it contained: and in my opinion the legal 
 consequence of this omission, both of the water and of the 
 act of mixing it with the wine, must be considered as 
 a prohibition of the ceremony or manual act of mixing 
 the water with the wine during the celebration of the 
 Eucharist. 
 
 I am by no means insensible to the very remarkable 
 argument addressed to me by the Admiralty Advocate with 
 respect to the analogy between the blood and water used in 
 the prototypal service of the Passover, and the wine and 
 water in the Eucharist ; and, as I have already observed, the 
 mingling a little pure water with the wine is an innocent 
 and primitive custom,* and one which has been sanctioned 
 by eminent authorities in our Church, and I do not say 
 that it is illegal to administer to the communicants wine 
 in which a little water has been previously mixed ; my 
 decision upon this point is, that the mixing may not take 
 place during the service, because such mixing would be a 
 ceremony designedly omitted in and therefore prohibited by 
 the rubrics of the present Prayer Book. 
 
 * The Poet Spenser thus describes his EideUa: — 
 " Shce was arrayed all iu lilly white, 
 " And in her right hand bore a cup of gold, 
 " With wine and water fiU'd up to the hight," 
 
 F. Q., Book 1, Canto 10, St. 13.
 
 94 
 
 Charge against Mr, Simpson of placing the Alms upon a 
 Stool. 
 
 The 6tli article alleges that Mr. Simpson has, within two 
 years last past, in his said parish church, on receiving the 
 alms collected at the offertory, placed the said alms (and the 
 basin containing them) on a stool instead of on the Holy or 
 Communion Table, and that such placing of the alms on a 
 stool, and not on the Communion Table itself, is an unlawful 
 alteration in and deviation from the form and order pre- 
 scribed and appointed by the said Book of Common 
 Prayer, &c. 
 
 Mr. Simpson, in his answer, admits that he has so placed 
 the said alms, and the basin containing them, on a stool 
 used as a Credence Table instead of on the Holy Communion 
 Table; but he denies that he has done so otherwise than 
 to obtain more room upon the said Holy Communion Table. 
 His counsel very properly stated that Mr, Simpson had 
 done ^^T.'ong, that he regretted having done so, and submitted 
 himself to the judgement of the Court. 
 
 The 7th article filed against Mr. Simpson, namely, that 
 he wilfully omitted the word " all " in saying the last 
 prayer in the Order of Morning and of Evening Prayer, has 
 been abandoned, and I need not again advert to it. 
 
 Lighted Candles on the Holy Table, 
 
 Article 5. — The 5th article against Mr. Mackonochle 
 alleges, '' that the Defendant has in his said Church, and 
 " within two years last past, to wit, on Sunday the 
 " 23d December, on Christmas Day last past, on Sunday 
 *^ the 30th December, all in the year of our Lord 1866, and 
 ^^ on Sunday the 13th day of January in the year of our 
 *^ Lord 1867, used lighted candles on the Communion Table 
 " during the celebration of the Holy Communion at times 
 " when such lighted candles were not wanted for the pur- 
 " pose of giving light, and permitted and sanctioned such 
 " use of lighted candles." 
 
 The answer to this article alleges, " that such charges are, 
 " in part, untruly pleaded, for the party proponent (the 
 '^ Defendant) alleges that on the said three Sundays and 
 *^ Christmas Day, in the said 5th article mentioned, the said 
 " lighted candles were not placed on the Communion Table, 
 " but uj)on a narrow moveable ledge of wood, resting on the 
 '^ said table, and that the said candles were so placed and 
 '^ kept lighted, not during the celebration of the Holy Com- 
 " munion only, as falsely suggested in the said 5th article, 
 '' but also during the whole of the reading of the Com-
 
 95 
 
 '^ munion Service, including the Epistle and Gospel, and 
 *^ during tlie singing after the reading of the Nicene Creed, 
 " and d'uring the delivery of the sermon." 
 
 Article 6. — The 6th article alleges, " that the use of such 
 " lio-hted candles is an unlawful addition to, and variation 
 " from, the form and order prescribed and appointed by the 
 " said statutes, and by the said Book of Common Prayer, 
 " and administration of the Sacraments and other rites and 
 " ceremonies of the Church, and is contrary to the said 
 " statutes, and to the 1 4th, 36th, and 38th of the said con- 
 " stitutions and canons." 
 
 And the Defendant, in answer to this, '' denies that the 
 " use of such lighted candles is an unlawful addition to, and 
 " variation from, the form and order prescribed and ap- 
 « pointed by the said statutes, and by the said Book of 
 " Common Prayer, and administration of the Sacraments and 
 " other rites and ceremonies of the Church, and is contrary 
 " to the said statutes, and to the 14th, 36th, and 38th of the 
 " said constitutions and canons, as in the said 6th article 
 " alleged." 
 
 A similar charge has been made against Mr. Simpson. 
 There is no express direction in the Rubrics, or in the 
 Statutes of Uniformity, or in the Canons of 1603 for the use 
 of lights at all on the holy table. Nor is there, in these 
 documents, any express prohibition of this ornament of divine 
 service ; and, adhermg to the principle which has guided my 
 judgement in the matters of the elevation, the mixing of water 
 with wine, and of the incense, it becomes my duty to consider 
 whether the use of hghts on the holy table falls under the 
 cateo-ory of things indirectly, or by necessary implication, 
 prohibited upon the grounds which have been stated, or 
 whether it be lawful either as indirectly ordered or innocently 
 subsidiary to divine worship. But there is also another 
 consideration peculiar to this subject, and which must in some 
 deo-ree distmguish the treatment of this ornament from that 
 which the others have received, namely, the important con- 
 sideration whether the use of lights has not been ordered by 
 competent authority, and whether that order must not, upon 
 leo-al principles of construction, be deemed a X3art of the present 
 law of the church. 
 
 The Kubric directs, " that such ornaments of the church 
 «^ and the minister thereof shall be retained and be in use as 
 «f were in this Church of England by the authority of Par- 
 '' liament in the second year of the reign of King Edward 
 « the Sixth." The Judicial Committee of the Privy Council 
 have instructed me as to the legal meaning of the word
 
 96 
 
 ^' ornament " in this Eubric* Their Lordships say as follows : 
 " All the several articles used in the performance of services 
 " and rites of the Church are ' ornaments.' Vestments, 
 " robes, cloths, chalices, and patens are amongst Church 
 " ornaments ; a long list of them will be found extracted 
 " from Lyndewood in Dr. Phillimore's edition of Bvu^n's 
 " Ecclesiastical Law (Vol. I. pp. 375, 6, 7). In modern 
 " times organs and bells are held to fall under this 
 *^ denomination." Their Lordships go on to say, and 
 I invite particular attention to their language, " When 
 " reference is made to the first Prayer Book of Edward 
 ^ the Sixth, with this explanation of the term * ornaments ' 
 '^ no difficulty will be found in discovering, amongst the 
 " articles of which the use is there enjoined, ornaments of 
 ^' the Church as well as ornaments of the ministers. 
 " Besides the vestments differing in the different services, 
 *' the rubric provides for the use of an English Bible, the 
 " new Prayer Pook, a poor man's box, a chalice, a corporas, 
 '* a paten, a bell, nnd some other things.'' " That these 
 
 * Their Lordships refer to Forcellini's lexicon for the meaning of Orna- 
 mentum ; it is clearly explained in Lyndwood : 
 
 Lipidwood, p. 52. (^W(dte7us.') " Sint (sc. Archidiaconi) Ecclesiarum 
 " Eectores ;" et infra. " Provideant Archidiaconi ut linteamina et alia 
 " (">) ornamenta altaris, sicut decet, (") sint honesta ; ut libros habeat ecclesia 
 " idoneos ad psallendum pariter et legenduni : et ad minus duplicia sacerdotalia 
 " vestimenta : et ut honor debitus divinis officiis in omnibus impendatur. 
 *' Prfficipimus etiam ut qui altari ministrat, suppellicio induatur." 
 
 (Gloss.) (m.) Ornamenta altaris. Qualia sunt frontilia, cortinaj, et cetera 
 hujusmodi. 
 
 (n.) Sicut decet. Ilaec decentia respici debet secundum qaahtatem ecclesifo 
 et ipsius facultates ; ut scilicet secundum quod ecclesia magis abundat in 
 facultatibus, sic meliora et preciosiora habeat ornamenta. 
 
 Pp. 49, 50. (Title.) l)e Officio Archidiaconi. Archidiaconi est prospi- 
 *' cere ut Sacramenta rite conserventur et administrentur, atque potissimum 
 *' Eucharistia et sanctum oleum sub clavibus custodiantur. Ornamenta quoque 
 *' Ecclesiarum ab eodem visitentur, et possessiones recenseantur." 
 
 Stephanns. " Plabeant etiam Archidiaconi in scriptis redacta omnia 
 " ornamenta C), et utensilia (''), Ecclesiarum. Vestes quoque et libros, qute 
 *' singulis annis suo faciant conspectui prsesentari, ut videant quae fuerunt 
 " adjecta per diligentiam personarum ; vel quai tempore intermedio per ipsarum 
 *' malitiam vel imperitiam deperierunt." 
 
 (Gloss.) (') Ornamenta. Quae sic dicta sunt, quia eorura cultu Ecclesiae 
 ornantur et dccorantur. Sunt namque ornamenta secundum Januen. decus, 
 gloria, laus, dignitas, sive preciosa vestimenta seu jocalia, quorum cultu Ecclesia? 
 decorantur. 
 
 (u.) Utensilia, i. e. ad utendum apta sive necessaria. Ilaec autem alibi 
 vocantur Cimelia, sicut legitur extra de offi. Arch. c. ea qua et \^ q. 2 Apos- 
 tvlicos. Et per hajc Utensilia intelliguntur vasa Ecclesia) quajcunque, sacrata 
 \ei non sacrata. 
 
 {Constitutio Domini Othonis), p. 52. " De Archidiaconis quoque statuiraus 
 *' ut ecclesias utiliter et fideliter visitent, de sacris vasis et (^) vestibus, 
 *' et qualiter diurnis et noctiu-nis officiis ecclesia) serviatur, et generaliter de 
 *' tamporalibus et spiritualibus inquirendo." 
 
 (Gloss), (e.) Vestihns. Pepete sacris, dictis vulgarlter vestimentis. 
 gupple, et ceteris ecclesia) ornamentis.
 
 97 
 
 " articles were included in the term 'ornaments of the 
 " Church ' at the period in question is clear from two docu- 
 " ments nearly contemporaneous, one before and the other 
 " after the establishment of the first Prayer Book. 
 
 '' In a letter of the coimcil to Crammer, dated the 30th 
 " April 1548, to be found in Strype's ' Memorials of Cram- 
 '' mer,' vol. ii. p. 90, they complain of the conduct of 
 " certain churchwardens, who sent away their chahces, 
 '' crosses of silver, bells, and other ornaments of the Church ; 
 " and in a commission in 1552, 1 Card. Doc. Ann., p. 112, 
 " No. xxvii. (Ed. 1844), the commissioners are enjoined to 
 " leave ^ in every church or chapel of common resort one, 
 " two, or more chalices or cups, according to the multitude 
 '' of people in every such church or chapel, and also such 
 «' other ornaments as by their discretion shall seem requisite 
 '^ for the Divine Service in every such place for the time. 
 {Westerton v. Liddell, Moore 157-8.) , 
 
 Edward the Sixth succeeded to the throne on January 
 28, 1546-7. His Privy Council showed an early intention 
 of carrying much further the Reformation began in the pre- 
 ceding reign. For this object homilies were composed, 
 mixed commissions of clergy and laity were formed, with 
 circuits assigned to them and large visitatorial powers. 
 
 These royal visitations superseded and practically inhibited 
 for a time diocesan visitations. 
 
 In 1547 the royal injunctions, the subject of so much 
 discussion during the course of the argument, were issued. 
 I refer to a very curious and rare edition with which I have 
 been furnished, printed in London in 1547, contempora- 
 neously therefore with the issue of the injunctions themselves. 
 The injunctions begin as follows : 
 
 " The Kyuges mooste royal majestic, by the advice of his 
 '^ most dere uncle the Duke of Somerset, Lorde Protector 
 '' of all his realmes, dominions, and subjectes, and governor 
 ^' of his most roiall persone, and the residence of hys moste 
 " honorable counsail, inteiidyng the advauncemet of the true 
 " honor of Almighty God, the suppression of idolatrie, and 
 " supersticio, throughout all hys realms of dominions, and to 
 " plant true religion, to the exterpacio of all hipocrisy, 
 " enormities, and abuses, as to hys duety apperteineth ; 
 " doth minister unto his loving subjectes, these godly 
 '' injunctios, hereafter folowig : Whereof, parte were gene 
 " unto tl eim heretofore, by authoritie of his most derely 
 " beloved father, Kyng Henry the eighte, of most famous 
 " memorie and parte are nowe ministered and geven by hys 
 *^ Majesty ; all which injunctions, his highness willeth and 
 " comaiideth his saied iouing subjectes, by his supreme 
 
 G
 
 98 
 
 ^^ auctlioritle, obediently to receone, and truely to observe 
 ^^ and kepe, eueiy ma in their offices, degrees, and states, as 
 ^^ they will avoydc his displeasure, and the paynes in the 
 " same injunccions hereafter expressed." 
 
 The reference to the injunctions issued hy Henry the 
 Eighth is important, in its bearing upon an argument 
 presently to be noticed. 
 
 I pass on to the injunctions more immediately affecting 
 the present subject. Their general object it will be seen is 
 to remove all ornaments that relate to superstition or 
 idolatry. 
 
 ^' Besides this, to the intent that all supersticion and 
 " hypocrisy, crept into diverse mennes hartes, may vanysh 
 ^^ away, thei shal not set furthe or extoUe any images, 
 ^' reliques, or mu-acles, for any supersticio or lucre, nor 
 ^' allure the people be any inticementes, to the pylgrimage 
 '' of any sainct or ymage ; but reprovyng y same, they shall 
 '' teache, that al goodnesse, health, and grace, ought to be 
 '^ both asked and loked for only of God, as of the varye 
 ^^ author and gever of the same, and of none other. 
 
 Item. — ^'That they, the persones above rehersed, shall 
 ^* make or cause to bee made in their churches, and every 
 ^* other cure thei have, one sermo, every quarter of the yere 
 ^^ at the least, wherein they shall purely and syncerely, 
 ^' declare the woorde of God ; and in the same, exhorte their 
 '' hearers to the woorkes of faythe, mercye, and charitie, 
 *^ specially prescribed and commanded in scriptm'e, and that 
 ^^ woorkes devised by mannes phatasies, besides scripture, as 
 *^ wanderyng to pilgrimages, offerying of money, cadelles or 
 " tapers, to reliques, or images, or kissying and lickyng of 
 " the same, praying upon beades, or such lyke supersticio, 
 '^ have not only no promise of reward in scripture, for doyng 
 *' of the ! but cotrariwise, great threates and maledicci5s of 
 ^' God, for that they bee thynges, tendyng to idolatry and 
 *^ supersticio, which, of al other offences, God Almighty 
 ^^ doth most detest and abhorre for that the same diminishe 
 *^ moste his honor and glory." 
 
 The next injunction is the one which affects the question 
 as to the lawfulness of these lights. 
 
 Item. — " That suche images as thei knowe in any of their 
 '' cures, to bee, or have been so abused with pilgrimage or 
 *^ offrynges, of any thyng made thereunto, or shal bee here- 
 ^' after censed unto, thei (and none other private persones) 
 '* shall for the advoyding of that moste detestable offence of 
 *^ idolotrie, furthewith take downe or cause to bee taken 
 ^^ downe, and destroye the same, and shall suflfre from 
 " hensefurthe, no torches, nor candelles, tapers, or images of
 
 99 
 
 " ware, to bee sette afore any image or picture, but onely 
 " twoo lights upon tlie high aulter, before the Sacrament, | 
 " whiche, for the significacion, that Christe is the very true l 
 «' light of the worlde, thei shall sufFre to remain still:!, 
 ^'^ admonishyng their parishioners that images serve for no 
 " other purpose, but to bee a remembrance, whereby, man 
 " maie bee admonished of the holy lifes and conyersacion of 
 '^ them that the said images doo represent ; whiche images, 
 " if they doo abuse for any other intent, they commit 
 '' idolotrie in the same, to greate daunger of their soules." 
 
 A variety of questions arise upon the subject of these 
 injunctions; but they may be all, I think, comprehended 
 under the following heads: — 
 
 1, Were these injunctions lawfully issued under statutable 
 
 authority ? 
 
 2. If so, were they subsequently abrogated by statutable 
 
 authority ? 
 
 It could not have been accurately said, and it has very 
 properly not been contended by the counsel for the promoter 
 that any judgment has been given upon this subject which 
 is binding upon this Court. 
 
 In the Saint Barnabas case, the use of lighted candles 
 during the Holy Communion Service, an opinion,^ which 
 will presently be considered, adverse to thek legality was 
 expressed by the learned Judge of the Consistory of London, 
 but durmg the progress of the suit it appeared that as a 
 matter of fact the candles were not lighted as alleged, and 
 no decree was made by the Court. The legality of lighted 
 candles on the Holy Table therefore was not directly sub- 
 mitted to the judgment of the Court of Arches or of the 
 Privy Coimcil : but it will be seen that the latter tribunal 
 expressed an opinion both in favour of the lawfulness of the 
 Injunctions and of the Candlesticks upon the Holy Table. 
 
 First, let me consider whether these injunctions were 
 lawfully issued ? Tlie question is one of no mean difficulty. 
 To define with certainty the exact legal limits within which 
 the Crown might in the time of Edward YI. exercise its 
 prerogative in relation to the Church, is a task which no one 
 cognizant of the difficulties which surround the subject would 
 willingly undertake. 
 
 It is said in the books that the Crown has power to visit, 
 reform, and correct abuses in the Church by the ancient law* 
 
 * 2 Roll. Abr, 230. Prerogative le Roy. (E.) Quel person visitera. 
 
 (1) Per rauncientLey cTe Realm le Roy ad power de visit reform et correct 
 
 toutes abuses et enormities en I'Eglise (Davis 1, Proxyes, 4.) 
 
 (2) Per le statute temps H. 8. le corone fuit lorsque remit et restore a son 
 
 auncient jurisdiction que fuit usurp per I'Evesque de Rome. (Davis 1, 
 Proxyes 4.) 
 
 a 2
 
 100 
 
 of the realm. What this power was, how/ever, is very un- 
 certain. When Henry the Eighth procured from Parlia- 
 ment the title of Supreme Head of the Church (though in 
 fact, whatever servile courtiers might say, he did but regain 
 the position from which the Pope had expelled the Crown) 
 he no doubt asserted that this authority required no sanction 
 of Parliament for its exercise, but it is remarkable that he 
 obtained that sanction as well as that of convocation for 
 almost every important act which he did to the church. 
 
 In truth our XXXVIIth Article of the Civil Magistrates 
 fixes the bounds of the Royal authority in matters of 
 religion : — • 
 
 " The Queen's Majesty hath the chief power in this realm 
 " of England, and other her dominions, unto whom the chief 
 '' government of all estates of this realm, whether they be 
 " ecclesiastical or civil, in all causes doth appertain, and is 
 ^' not, nor ought to be, subject to any foreign jurisdiction. 
 
 " When we attribute to the Queen's Majesty the chief 
 " government, by which titles we understand the minds of 
 ^^ some slanderous folks to be offended, we give not to our 
 " princes the ministering either of God's word or of the 
 '' Sacraments, the which thing the injunctions also lately set 
 '• forth by Elizabeth our Queen do most plainly testify, but 
 '' that only prerogative which we see to have been given 
 ^^ always to all godly Princes in Holy Scripture by God 
 " Himself; that is, that they should rule all estates and 
 " degrees committed to their charge by God, whether they 
 '^ be ecclesiastical or temporal, and restrain with the civil 
 *' sword the stubborn and evil doers. The Bishop of Rome 
 " hath no jurisdiction in this realm of England.""^ 
 
 When Cranmer was persecuted under the form of a trial at 
 Oxford, Dr. Martin, who appeared as his judge, asked him 
 (I take the account from the last volume of the Dean of 
 Chichester's work), " Who was the supreme head of the 
 " Church of England ?" The Archbishop was glad to have 
 an opportunity of explaining his former rather strong asser- 
 tions on this point. " Marry," he said, " Christ is head of 
 
 * The Abbe Fleury quite understood this position. (Disc, sur I'Hist. Eccles., 
 Dissert. IX.) " Le titre de Chef de VEglise que les Anglicans ont donne a 
 *' leur Roi, ne doit pas etre pris a la rigueur. En lui donnant cette qualite, il 
 " ne pretendent point qu'il puisse exercer les fonctions eccles iastiques, donner 
 " la mission aux Eveques et aux Pretres, administrer les sacremens, en un 
 " mot, qu'il soit le principe de la puissance spirituelle. II ne lui donne point 
 " d'autre autorite dans les matieres de la religion, que celle de faire des lois 
 " pour maintenir le bon ordre de I'Eglise, de soutenir et appuyer celles qui 
 ' ' sont faites par les Eveques, d'assembler des conciles, de contenir les eccl^- 
 " siastiques comme des laiques dans la soumission due au Prince, a rexclusion 
 " de toute puissance etrangere." 
 
 See too the first canon of 1603.
 
 101 
 
 '' this member, as He is of the whole of the body—of the 
 " universal Church." '^ Why," quoth Dr. Martin, ^' you 
 " made King Henry the Eighth supreme head of the 
 " Church." " Yea," said the Archbishop, '' of all the people 
 " of Eno-land, as well ecclesiastical as temporal." " And 
 '' not of "the Church?" asked Martin. '' No," said Cranmer, 
 *' for Christ is only head of this Church, and of the faith 
 " and religion of the same. The king is head and governor 
 " of his people, which are the visible Church." " What I'J 
 quoth Martin, "You never durst to tell the King so?" 
 " Yes, that I durst," quoth he, " and did, in the publication 
 " of his style ; wherein he loas named supreme head of the 
 " Church there was never other thing meant:'— {Hook, Lives 
 of the Archbishops of Canterbury, Vol 11. (n.s.) p. 373.) 
 
 It is, to say the least, extremely doubtfid whether, at any 
 period of our constitution, the Crown had power to issue, of 
 its own authority, injunctions of this kind. 
 
 It becomes, therefore, important to consider the language 
 of what is called the Supremacy Act. 
 
 The Statute of 26 Hen. V^III. cap. 1. was passed A.D. 
 1534, and enacts as follows: 
 
 " Albeit the King's Majesty justly and rightfully is and 
 
 " ought to be the supreme head of the Church of England, 
 
 '' and so is recognized by the clergy of this realm in the con- 
 
 " vocations, yet nevertheless for corroboration and confirnia- 
 
 " tion thereof, and for increase of virtue in Chris fs religion 
 
 « within this realm of England, and to repress and extirp all 
 
 '^ errors, heresies, and other eiiormifies and abuses heretofore 
 
 '' used in the same, be it enacted by authority of this present 
 
 " Parliament, that the King our Sovereign Lord, his heirs 
 
 " and successors, kings of this realm, shall be taken, ac- 
 
 " cepted, and reputed the only supreme head on earth of 
 
 " the Church of England, cnWed Anglicana Ecclesia,{2) and 
 
 " shall have and enjoy, annexed and united to the imperial 
 
 " crown of this realm, as well the title and style thereof, as 
 
 " all honours, dignities, preheminences, jurisdictions, privi- 
 
 " leges, authorities, immunities, profits, and commodities to 
 
 " the said dignity of supreme head of the same ^ Church 
 
 " belonging and appertaining ; (3) and that our said Sove- 
 
 « reio-n Lord, his heirs and successors, kings of this realm, 
 
 " shall have full power and authority from time to time 
 
 " to visit, repress, redress, reform, order, correct, restrain, 
 
 " and amend all such errors, heresies, abuses, offences, con- 
 
 " tempts, and enormities, whatsoever they be, which by any 
 
 " manner, spiritual authority, or jurisdiction, ought or may 
 
 " lawfully be reformed, repressed, ordered, redressed, cor- 
 
 '' rected, restrained, or amended, most to the pleasure of
 
 102 
 
 *^ Almighty God, the increase of virtue in Christ's religion, 
 '' and for the conservation of the peace, unity, and tranquillity 
 '' of this realm, any usage, custom, foreign laws, foreign 
 '' authority, prescription, or any other thing or things to the 
 " contrary hereof notwithstandmg." 
 
 There is no doubt that under the authority of this Statute 
 the three royal injunctions in the years 1536 and 1538 were 
 issued. The statute of 21 Hen. VIII. cap. 8., intituled '' An 
 '' Act that Proclamations made by the Kmg shall be obeyed," 
 commonly called the Proclamation Act, was not passed till 
 the year 1539. — {Strypes Memorials, 1 Pt. 1. 494-7.) 
 
 Strype remarks '' that these last injunctions were given 
 " out by reason of the negligent observation of the forme r, 
 " which the clergy took little heed to." 
 
 There is no reason for surprise, therefore, in finding some 
 of them repeated in the next reign {see p. 496 in fine), such 
 especially as that which orders the ministers to preach against 
 '^ offering candles and tapers to relicks." 
 
 It has been argued by Mr. Stephens, adopting the opinion 
 of Sir John Dodson, that this statute, as well as every 
 statute *' relating to doctrine or other matters of religion," 
 has been repealed by 1 Edward VI. c. 12., passed in 
 the year 1547. The proposition appeared to me at the 
 time, having regard to the necessary consequences flowing 
 from it, to be of an alarming character ; and, after very 
 mature deliberation, I have arrived at the conclusion that 
 it cannot be sustained. The section which it is alleged 
 possesses this great power of abrogation and repeal (sec- 
 tion 2.) is as follows: — " And allso be it enacted by 
 *^ thauctoritie aforesaide, that all Actes of Plament and 
 " Estatutes towchinge mencyoninge or in anny wise con- 
 " cernynge religion or opinyons, that is to sale aswell the 
 ^' Statute made in the first yere of the reigne of the 
 " King's noble progenitor Kinge Kicharde the Second, and 
 '* the Statute made in the second yere of the reigne of 
 " King Henry the Fifthe, and the Statute allso made in the 
 a xxv*^' yere of the reigne of Kinge Henry theight con- 
 ^« cerninge punishment and reformacon of Here tykes and 
 " Lolardes, and everie provision therein conteyned, and the 
 " Statute made for the abolishment of diversitie of opinions 
 " in certaine artycles concernynge Christian Religion 
 " comonlie called the Sixe Articles, made in the Plament 
 ^' begonne at Westmestre the xxviij"' daie of Apryll in the 
 " xxxj*^' yere of the reigne of the moste noble and victorious 
 '' Prynce of moste famous memorie Kinge Henry theight, 
 '^ father to our saide moste drad Soveraigne Lorde the 
 " Kinge that now is, and allso the Acte of ^lament
 
 103 
 
 *^ and Statute made at the Plament begoonne at Westmestre 
 " the xvj daye of Januarye in the xxxiij*^ yere of the reigne 
 ^^ of the saide late King Henry theight, and after that 
 '' proroged unto the xxij*^ daye of Januarye in the xxxiiij 
 " yere of the reigne of the saide late King Henry theight, 
 '' touchinge, mentioninge, or in anny wise concerninge 
 " bookes of the Old and New Testament in Englishe, and 
 ^' the pryntinge, utteringe, selling, giving, or delivering of 
 " bookes or writings, and reteyninge of Englishe bookes or 
 " writings, and reading, preaching, teaching, or expownding 
 ^^ of Scripture, or in anny wise touching, mentionynge, or 
 " concerninge anny of the same matters : And allso one 
 " other Statute made in the Plament holden at Westmestre 
 '^ in the xxxv*^ yere of the reigne of the saide late King 
 '' Henry theight, concerninge the qualificacon of the Statute 
 '' of Sixe Articles, and all and everie other Acte or Acts 
 '^ of Plament concerninge doctryne and matters of religion, 
 " and all and everie braunche, artycle, sentence, and matter, 
 " paynes, and forfaitures conteyned, mentioned, or in anny 
 '^ wise declared in anny of the same Acts of Plament or 
 *^ Estatutes, shall from hensfurthe be repealed and utterlie 
 '^ voyde, and of none eifecte." 
 
 It was truly observed by Mr. Hannen that the object of 
 this Statute is to repeal laws which inflicted severe punish- 
 ments and penalties, imprisonment, fine, and death, on account 
 of opinions entertained ^' concerning doctrine or matters of 
 *^ religion," such as had been enforced in the reigns of 
 Bichard IL, Henry Y., and Henry Vllle, against heretics of 
 various kinds. 
 
 If the wider signification which has been contended for 
 be given to this statute, it would in truth repeal the prin- 
 cipal statutes enacted during the reign of Henry YIII. for 
 establishing the independence of the Church of England. 
 
 It will be difficult to maintain that the statutes against 
 the payment of annates (23 Hen, VIIL c. 20.), the restraint of 
 appeals (24 Hen. VIII. c. 12.), and even the Act of Supremacy 
 (25 Hen. VIII. c. 19.), would not fall under the category of 
 enactments concerning ^' doctrine or matters of religion :" 
 but in truth the number of Statutes which this construction 
 would repeal might amount to forty-two, and certainly would 
 include a great many of grave importance.* I remember 
 that Sir W. Maule (one of the members of the Judicial 
 Committee) observed, *^ that if there were anything in Magna 
 ^' Charta about religion, it would on this construction be 
 ^^ repealed," 
 
 * Perry on Lawful Church Ornaments, App. pp. XL — XXXV.
 
 I am of opinion that the operation of this statute of 
 Evlward VI. must be confined within the limits which I 
 have stated, and that it has not repealed any power to issue 
 Koyal Injunctions which Henry YIII. derived, either from the 
 Supremacy or the Proclamation Statute. 
 
 The legal authority of these Injunctions of Edward YL 
 was discussed in the '' Westerton y. Liddell'' cases. The 
 judge of the Consistory of London held that the burden of 
 proving their legal authority lay upon those who asserted it, 
 and that the burden had not been discharged, and he treated 
 the Injunctions as invalid ; and on that ground, among others, 
 decided that the ^' Cross " was not a lawful ornament of the 
 Church. 
 
 The Court of Arches, however, held that Edward VI. 
 had power to issue these Injunctions under the authority of 
 the Proclamation Act, 31 Henry VIII. cap. 8., and the 
 learned judge decided that the Cross was an illegal ornament 
 because it was forbidden under the name of an ^^ Image ''' 
 by these very Injunctions of Edward VI. 
 
 When the case of Westerton v. Liddell was appealed to 
 the Judicial Committee of the Privy Council they decided 
 that the Cross was a lawful ornament, and that it was not an 
 *' Image" forbidden by these Injunctions. (Moore, 161 in Jin.) 
 
 In arriving at this conclusion they certainly treated the 
 Injunctions as valid, whether or not they agreed with Sir 
 J ohn Dodson's opinion that their validity was derived from 
 the powers conferred on the Crown by the Proclamation Act : 
 and referring to the 28th section of these ver}^ Injunctions, 
 they say, " The section could not mean that all candlesticks 
 "" should be removed from Churches, for two were to be re- 
 '' tained " (namely, by the third section) " on the Hiij^h 
 '' Altar." {Moore, 165, 166.) 
 
 If this be so, their decision is binding upon me, and the 
 general question as to the legal validity of these Injunctions 
 has been decided in the affirmative. It may be as well, how- 
 ever, to look a little more closely into this question. 
 
 It has been argued that these Injunctions were not lawfully 
 issued under the Proclamation Act, because it related only 
 to temporal and not to spiritual matters, and also because 
 the orders which it prescribed for the preparation and issue 
 of instruments under its authority were indispensable con- 
 ditions, and had not been complied with. 
 
 Mr. Stephens, in his argument upon this subject, laid dovsTi 
 four propositions. First, if these Injunctions were issued 
 under the Proclamation Acts, nevertheless, upon the repeal 
 of those Acts in November 1547, they were not in force by 
 the authority of Parliament in the second year of Ed'ward VI.
 
 105 
 
 Secondly, if they were intended to be issued under the Pro- 
 clamation Acts of Henry VIII., they were not issued in 
 accordance with their provisions, (1.) because there is no 
 time limited during which the Injunctions were to contmue 
 in force ; (2.) because the copies of those Injunctions which 
 were printed and circulated were not signed by 13 members 
 of the King's Council, as required by 31 Henry YIII. 
 cap. 8., and there is no evidence of their having been pro- 
 claimed in accordance with the 3rd section of that Statute. 
 Thirdly, that instead of the punishment by fine and imprison- 
 ment which the Council, under section 4 of 31 Henry VIII. 
 cap. 8., were empowered to inflict, the Injunctions of 1547 
 only threatened ecclesiastical punishments, which the Council 
 had no power to inflict under the Proclamation Act ; and 
 those ecclesiastical punishments are to be inflicted by the 
 ordinary, and not by the 13 members of the King's Council. 
 Fourthly, it appears from the earliest historians of the 
 reformation, Fox, Fuller, and Heylin, that the Injunctions 
 were not issued under the Proclamation Act, but by virtue 
 of the King's supremacy. 
 
 From the first of these propositions I have already ex- 
 pressed my dissent. With regard to the second, I think there 
 is every presumption of law, and that a court of justice must, 
 after this distance of time, act upon that presumption, that 
 these Injunctions were signed by the requisite number of 
 members required by this Statute, and the absence of a 
 specified time during which the Injunctions were to be in 
 force would not, in my opinion, invahdate their validity. 
 As to the objection that they were not duly proclaimed in 
 the market place by the sheriff, the clause which requires 
 this seems to me directory only, and to whatever penalty non- 
 compliance with it might render the sheriff amenable, such 
 noncompliance would not invalidate the Injunctions. The 
 contrary position was, indeed, maintained by Bishop Gardner* 
 when he was imprisoned for disobedience to these Injunctions, 
 which he considered to have been issued under the Procla- 
 mation Act. It is remarkable, however, that he does not 
 dispute the power of the Crown to issue the Injunctions, nor 
 that the proper number of counsellors had not signed the 
 instrument, but maintains that he ought not to be imprisoned 
 by virtue of the Proclamation Act ; and it might be that 
 the Injunctions were valid under the " Supremacy Act/' but 
 that the additional power of secular punishment given by 
 the Proclamation Act could not be put in force against him, 
 and that he was only liable to ecclesiastical punishment 
 
 * Collier's Eccl. Hist., Vol. V. p 199.
 
 106 
 
 under the Injunctions. This was probably the opinion of 
 Fox, Fuller, and Heylin, to whom Mr. Stephens referred in 
 his fourth proposition. 
 
 I have made these observations upon the Proclamation 
 Act out of deference to the argument which was addressed 
 to me; but after all, whether these observations are well 
 founded or not is of small moment, because it seems to me 
 impossible to doubt that these Injunctions were recognized by 
 the Legislature, not only because they would derive validity 
 from the Supremacy Act, but also because they are specially 
 recognized in the first Prayer Book, which is part of the 
 first Statute of Uniformity, in the following words : " Upon 
 " Wednesdays and Fridays the English Litany shall be 
 " said or sung in all places after such form as is appointed 
 " by the King's Majesty's Injunctions, or as is or shall be 
 ^' otherwise appointed hj His Highness." — {Liturgical Ser- 
 vices, p. 97, Rubric after the Communion Service,) 
 
 I should mention that in the year 1548-49 the Visita- 
 tion Articles for the diocese of Canterbury in the second 
 year of Edward VI. repeat this Injunction in the following 
 inquiry : " Whether they have not .... destroyed 
 *' in their churches, chapels, and houses all images, all 
 " shrines, coverings of shrines, all tables, candlesticks, 
 " trindles or rolls of wax, pictures, paintings, and all other 
 " monuments of feigned miracles, 'pilgrimages, idolatry^ and 
 '' superstition, so that there remain no memory of the same 
 " in walls, glass windows, or elsewhere;" and also the 
 inquiry : '^ Whether they suffer any torches, candles, tapers, 
 *' or any other lights to be in your churches, hut only two 
 *^ lights upon the high altarP — {Cardivell, Doc. Ann. p. 49.) 
 
 Before I leave this subject let me observe that I cannot 
 find that the legal authority of these Injunctions per se was 
 ever seriously questioned before the judgment of Dr. Lush- 
 ington in the St. Barnabas case. JSTor am I aware of any 
 statute, — none has been cited to me, — by which they have been 
 deprived of their original authority. There were many 
 occasions on which those who were adverse to them would 
 o-ladly have impugned their original validity, and there was 
 no lack of learned advisers versed in legal and constitutional 
 lore to have prompted or maintained such a proposition. 
 
 In the interval between 1547 and 1549 no objections what- 
 ever appear to have been taken to these Injunctions ; but in 
 that year a paper appears, the authority of which is extremely 
 questionable ; it was unsigned, and the author is unknov/n : 
 it is headed " Articles to be followed and observed according 
 '' to the King's Majesty's Injunctions and Proceedings ;" and 
 the second of these Articles forbad, among a variety of other
 
 107 
 
 things, '' setting any light upon the Lord's board at any 
 time."— (CarcZ. Doc, Ann. v. 1, 75.) , . 
 
 It is clear, however, that these Articles (perhaps Visitation 
 Articles, and only binding, like those of Ridley m 1550, if 
 at all. in a particular diocese,) cannot affect the_ question 
 of whether lights were an ornament " in use in this Church 
 '' of England by authority of Parliament in the second year 
 " of the'^reign of King Edward the Sixth." 
 
 Here I must notice two remarkable letters which throw 
 the light of contemporary history on this subject ; the first is 
 a letter written by Martin Bucer and Paul Fagius to the 
 ministers at Strasburi^ ('' Original Letters" pubhshed by the 
 Parker Society, p. 535) ; it is dated April 26, 1549. '' We 
 " yesterday waited upon the Archbishop of Canterbury, 
 " that most benevolent and kind father of the Churches, 
 " who receives and entertains us as brethren. The cause 
 '' of religion as far as appertains to the establishment of 
 " doctrines and the definition of rites is pretty near what 
 ^' could be wished/' . • • • . • 
 
 " As soon as the description of the ceremonies now m use 
 " shall have been translated into Latin we will send it to 
 " you. We hear that some concessions have been made 
 «< both to a respect for antiquity and to the infirmity of the 
 " present age, such, for instance, as the vestments commonly 
 " used in the Sacrament of the Eucharist' and the use of 
 '' candles, so also in regard to the commemoration of the 
 " dead and the use of chrism, for we know to what extent 
 '' or in what sort it prevails. They affirm there is no super- 
 '^ stition in these things, and that they are only to be re- 
 " tained for a time, lest the people, not having yet learned 
 '' Christ, should be deterred by too extensive innovations 
 " from embracing His religion, and that rather they may be 
 
 " won over." tt -o i 
 
 The second letter is from John Hooper to Henry ±Sul- 
 lino-er, 7th December 1549 (Original Letters, Parker 
 Society, page 71); it is, "The altars are here in many 
 '' churches changed into tables. The pubhc celebration of 
 « the Lord's Supper is celebrated three ^ times a day. 
 « Where they used heretofore to celebrate in the morning 
 '' the Mass of the Apostles, they have now the Communion 
 " of the Apostles ; where they had the Mass of the Blessed 
 « Viro'in, they have now the Communion, which they call 
 " the "^ Communion of the Virgin ; where they had the 
 " principal or High Mass, they now have, as they call it, 
 " the High Communion. They still retain their vestments 
 " and the candles before the altarsr 
 
 Surelv during the reign of Elizabeth the legal invalidity
 
 108 
 
 of these injunctions would have been urged by those who 
 w^ere adverse to the use of lights. 
 
 Bishop Cox, writing to Gualter on February 12, 1571, 
 says of the Queen, that she *' has always been so exceed- 
 " ingly scrupulous in deviating even in the slightest degree 
 " from the laws prescribed." {Zurich Letters, 1st series, 
 No. XCIV., p. 234.) And it is an admitted fact that the 
 two lights were used in her Chapel at the celebration of 
 the Holy Communion. It is no less certain that many of 
 her counsellors, temporal and spiritual, pressed her to dis- 
 continue the use of these lights, an object they were most 
 anxious to effect, but in no one single instance did they ever 
 allege to Her Majesty that the burning of these lights upon 
 the Holy Table was contrary to the law. I say this with 
 some confidence, not only because I have been unable to 
 find any instance myself, but because the leading counsel 
 for the promoter, whose industry and whose acquaintance 
 with these subjects no one will gainsay, having been so good, 
 in compliance with my request, as to make search into the 
 authorities upon this point, was unable to find that any 
 such argument had ever been adduced. 
 
 The lawfulness of placing these two lights upon the Holy 
 Table appears to me established by these Injunctions, unless 
 they are, as has been contended, by necessary implication 
 abolished, inasmuch as they are significant of a Papal super- 
 stition, which was rejected by the Church at the time of the 
 Reformation. 
 
 To this argument there are various answers : 
 
 First. These lights, in their original institution, were not 
 significant of any rejected Papal superstition, but of the 
 fundamental truth of Christianity, namely, the light of the 
 Gospel. The origin of them in the canon law I will pre- 
 sently refer to. 
 
 Secondly. They were suffered to remain because of their 
 strictly Evangelical character ; they were for the honour of 
 Christ, not of the Blessed Virgin or of Saints, as lights on 
 bye altars might be. 
 
 " About the year 376 (A.D.) Vigilantius spoke with de- 
 rision of the practice of Christians to burn candles during 
 Divine Service at mid-day. Saint Jerome wrote a defence 
 of the Church, and of this practice : 
 
 " Non diffiteor (he says) omnes nos, qui in Christo cre- 
 " dimus, de idololatrige errore venisse^ no enim nascimur, sed 
 ••^ renascimur Christiani, et quia quondam colebamus idola, 
 " nunc Deum colere n5 debemus, ne simili eum videamur 
 " cum idolis honore venerari ? Illud fiebat idolis, et 
 " iccirco detestandum est; hoc fit martyribus, et iccirco
 
 109 
 
 " recipiendum est nam et absq, martyrum roliquiis per 
 '^ totas orientis ecclesias, quando legendum est evangelium, 
 " accenduntnr luminaria, jam sole rutilante, non vtiq^ ad 
 " fugandas tenebras, sed ad signum laetitise demonstrandum, 
 ^' unde et virgines' ill^e evangelic^ semper habent accensas 
 " lampades suas ; et ad apostolos dicitur ; Sint lumbi vestri 
 " prcecincti, ut lucerncB ardentes in manihus vestris, Et 
 '^ de Joanne Baptista : Ille erat lucerna ardens, ut lucens : 
 " ut sub typo luminis corporalis ilia lux ostendatur, de qua 
 " in psalterio legimus : Lucerna pedibus meis verbum tuum 
 " Domine, ut lumen semitis meis." (Hieronym. Stridoniensis 
 "^ Ojperar Adversus Vigilantium^ t. 1, p. 160, ed. Colon. 
 1516.) 
 
 Dr. Donne, in his defence of the use of lights in the 
 daytime during Divine service relies much upon the early 
 Christian practice : 
 
 " I would not (he says) be understood to condemn all 
 '^ use of candles by day in Divine service, nor all churches 
 " that have or do use them, for so I might condemn even 
 " the primitive church in her pure and innocent estate. And 
 " therefore that which Lactantius, almost three hundred years 
 " after Christ, says of those lights, and that which Tertullian, 
 " almost a hundred years before Lactantius, says in repre- 
 " hension thereof, must necessarily be understood of the 
 " abuse and imitation of the Gentiles therein ; for that the 
 ^^ thing itself was in use before either of these times I think 
 *' admits little question. About Lactantius' time fell the 
 " Eliberitan Council, and then the use and the abuse was 
 " evident ; for in the 34th canon of that council it is for- 
 " bidden to set up candles in the churchyard ; and the 
 
 " reason that is added declares the abuse 
 
 " that the souls of the faithful departed should not be 
 " troubled. Now the setting up of lights could not trouble 
 " them, but these lights were accompanied with superstitious 
 " invocations, with magical incantations, and with bowlings 
 " and ejaculations which they had learned from the Gentiles, 
 " and with these the souls of the dead were in those times 
 " thought to be affected and disquieted. It is in this cere- 
 " mony of lights as it is in other ceremonies ; they may be 
 " good in their institution, and grow ill in their practice. 
 " So did many things which the Christian church received 
 " from the Gentiles in a harmless innocency degenerate 
 " afterwards into as pestilent superstition there as amongst 
 " the Gentiles themselves. For ceremonies which were 
 " received but for the instruction and edification of the 
 " weaker sort of people were made real parts of the service 
 " of God and meritorious sacrifices. To those ceremonies^
 
 110 
 
 "^ which were received as helps to excite and awaken de- 
 " votion, was attributed an operation and an effectual power, 
 '• even to the ceremony itself, and they were not practised, 
 " as they should, significative, but effective, not as things 
 " which should signify to the people higher mysteries, but 
 '^ as things as powerful and effectual in themselves as the 
 '^' greatest mysteries of all, the Sacraments themselves. So 
 " lights were received in the primitive church to signify to 
 " the people that God the Father of Lights was otherwise 
 " present in that place than in any other; and then men 
 " came to offer lights by way of sacrifice to God ; and so 
 ^' that which was providently intended for man, who indeed 
 " needed such helps, was turned upon God, as though He 
 '' were to be supplied by us. But what then ? Because 
 '^ things good in their institution may be depraved in their 
 
 ^^ practice shall therefore the people be 
 
 ^^ denied all ceremonies for the assistance of their weak- 
 
 '^ ness ? We must not be hasty in con- 
 
 '^ demning particular ceremonies, for in so doing, in this 
 '^ ceremony of lights, we may condemn the primitive church 
 " that did use them, and we condemn a great and noble 
 " part of the reformed church which doth use them at this 
 « day."— (Dr. Donne's Sermons, p. 80, fol, 1640. Vol. I. 
 15 Oct.)* 
 
 Thirdly, as to the averment that the words " before the 
 " Sacrament " denote the reserved Sacrament, 
 
 * Luther allowed the use of these lights, see his Deudsche Messe, 2 Codex 
 Liturgicus, p. 97. 
 
 Des Sontags fur die ley en, ih. p. 108. 
 
 Da lassen wyr die Messegewand, altar, liechter noch bleyben, bis sie alle 
 werden, oeder uns gesellet zu endern, wer aber hie anders vil faren, lassen wyr 
 geschehen. 
 
 Editor's note. — Gerberus, 1, c, p. 459. "Die lichter oder wacks-keitzen, 
 " die wir bey der handlimg des heiligen nachtmals auziinden, sind audi unter 
 " die ceremonien zu rechnen." P. 132. — Audi sollen die gewonlichen liechter, 
 zu den bonis, messen, und andern empten, auch sonst des winters zur nothinft 
 gehrand werden, was aber dariiber sonst sonderliche liechter des sondersehaften 
 und gulden, oder entzeler personen verhanden, sollen abgethan, und was etwau 
 daraufF gewand sol nach befelch der visitation zu hesserm branch gefurt 
 werden. 
 
 Wie man die krancken communiciren sol. 
 
 P. 432. Editor's note. — " In deme alse de Pfarrhere solckes, alse hyr vor 
 " hir steit, mit dem volcl^ie, unde mit dem krancken riidet, let ne dorch 
 " den costes, de alle wege mit gan schal, bereiden einen disch, mit brodt 
 " unde wyn, mit einem reinen doke bedecket, unde bereidet das up dat brodt 
 " in der patene, den wyn in dem ketke, etc." P. 3. 563. — Multi alii lihri 
 mentionem faciunt candelarum in celehratione sacramenti accendendarum. 
 Gb. p. 487. Es sind aber die ceremonien bey communion derer patienten 
 nicht allenthalben einerley. An manchen orten werden noch 2 lichter 
 angeziindet und auf den tisch gesetzt, auch ein crucifix dazu, andere aber 
 lassen diese dinge weg, und achteo sie nicht, wie si denn auch nicht nothig 
 seyn.
 
 Ill 
 
 The practice of reserving the Holy Sacrament, it has been 
 truly said, is unlawful according to the present law of the 
 Church of England. 
 
 In the Office for the Communion of the Sick in the 
 Prayer Book of Edward YI. it is provided by the prefatory 
 rubric as follows : '^ And if the same day there be a 
 ^' celebration of the Holy Communion in the Church, then 
 '^ shall the priest reserve (at the open Communion) so much 
 " of the Sacrament of the body and blood as shall serve 
 " the sick person, and so many as shall communicate with 
 '^ him (if there be any) ; and so soon as he conveniently 
 " may, after the open Communion ended in the Church, 
 " shall go and minister the same, first, to those that are 
 " appointed to communicate with the sick (if there be any), 
 '' and last of all to the sick person himself," — {lAturgical 
 Services, Ed. Camb., 1844,j>. 141.) 
 
 In the present Prayer Book it is ordered : " And if any 
 " of the bread and wine remain unconsecrated, the curate 
 " shall have it to his own use ; but if any remain of that 
 " which was consecrated, it shall not be carried out of the 
 " Church, but the priest, and such other of the communicants 
 '^ as he shall then call unto him, shall, immediately after 
 " the Blessing, reverently eat and drink the same." 
 
 The light which burnt before the reserved Sacrament was 
 generally a lamp. 
 
 This light was continually burning, and therefore probably 
 oil was used, whereas these two lights were only burning 
 during the celebration. 
 
 The lights before the reserved Sacrament appear to have 
 been always of an uneven number when the light was not, 
 as it usually was, single. 
 
 The lights ''^ before the Sacrament" in England were 
 necessarily, for mystical reasons, or more properly fancies, 
 enumerated by Lyndewode, but which it is not necessary to 
 recapitulate here, made of wax. 
 
 The words '^ before the Sacrament " are omitted in 
 Cranmer's Visitation Articles intended to execute the in- 
 junction, but that clearly means *' tempore quo missarum 
 " solennia peraguritur," while the ceremony was being 
 performed. The candles might be lighted before the 
 elements have been consecrated, and before the Sacrament 
 is therefore complete, " accedit verbum elemento et fit sacra- 
 mentum," as Saint Augustine says, but they are not the less 
 burning before it when it is complete. 
 
 The reserved Sacrament was not in the time when Lynde- 
 wode wrote his Commentary (in 1430) placed upon the 
 " High Altar." It was one of the usages peculiar to the
 
 112 
 
 Church of England to suspend the reserved Sacrament 
 above the altar. 
 
 The account given by Lyndewode clearly shows that tico 
 icax candles (the number and the quality it is important to 
 notice) ought properly to accompany every celebration of 
 the Mass, because Christ is the splendour of eternal light. 
 
 In a constitution of Archbishop Walter, under the fol- 
 lowing title, " Sacerdos curet, ut omnia Eucharistise deser- 
 '' vientia sint integra et munda, atque verba consecrationis 
 *^ debite pronunciet, nee celebret antequam matutinas 
 " primam et tertiam perlegerit, nee sine clerico superpellicio 
 " induto, nee sine tunica, nee in peccato mortali," we find 
 tliis order : 
 
 Lyndivood, p. 236, Walterus. — " Nullus insuper sacerdos 
 " parochialis praesumat missam celebrare, antequam matu- 
 " tinale persolverit officium, et primam et tertiam de die. 
 *^ Item nuUus clericus permittatur ministrare in officio altaris, 
 *' nisi indutus sit superpellicio, et tempore quo missarum 
 *' solennia peraguntur, accendentur {n) duae candelse, vel ad 
 " minus una." 
 
 Upon this constitution the gloss of Lyndwood is as follows : 
 
 (n) Du(B cnndelce. — " Est enim a parte juris ordinatum 
 *' quod sacerdos sine lumine ignis non celebret missam. 
 " {Extra eo c. ulti. uhi de hoc.) Si tamen faciat, nihilominus 
 *^ conficit, licet graviter peccet, secundum Hostien. ibi, et con- 
 " cordant alii doctores. Et nota, c-[uod candelas in celebra- 
 " tione missae arsuras convenit esse de cera potius quam de 
 " alia materia. Candela namque sic ardens significat ipswn 
 " Christum, qui est splendor lucis (EterncB. {Extra eo c. sane.)'^' 
 
 The Devonshire rebels, when in 1549 they demanded the 
 restoration of Roman Catliolic rites, drew up a series of 
 articles in which their grievances were stated, they said in 
 their 4th article : 
 
 " We will have the Sacrament hang over the high altar, 
 " and there to be worshipped, as it Avas wont to be ; and they 
 " which will not thereto consent, we will have them die like 
 " heretics against the Holy Catholic Faith." 
 
 The answer of Cranmer is very remarkable : 
 
 " Is this the Holy Catholic Faith, that the Sacrament 
 " should be hanged over the altar and worshipped ? and they 
 
 * Unde et candela in sui compositione significat Christum propter tria : 
 componitvir namque candela ex cera, lychno, et lumine. Sic quoque Christus 
 constat ex carne virginea sine semine generatus, sicut procedit cera ex ape sine 
 generatione vel coitu apis. Lyclmus, qui est candidus, significat in Christo 
 animam candore innocentia; adornatam. Lumen vero significat ejus divini- 
 tatem carni unitam. De his sic dicitm- Cantic, 5 : " Dilectus mens candidus 
 " propter animam candidam et ruhicuudus propter divinitatem fulgidain. Electus 
 " ex millibus propter carnem sine peccato genitam^
 
 113 
 
 " be heretics that will not consent thereto 
 
 " Innocent III., about 1215 years after Christy did ordain 
 " that the Sacrament and Chrism should be kept under lock 
 " and key. But yet no motion he made of hanging the 
 '^ Sacrament over the high altar, nor of the worshipping of 
 " it. After him came Honorius III., and he added further, 
 " commanding that the Sacrament should be devoutly kept 
 '• in a clean place, and sealed, and that the priest should often 
 '' teach the people reverently to bow down to the Host when 
 '^ it is lifted up in the mass time, and when the priest should 
 " carry it to the sick folks. And although this Honorius 
 " added the worshipping of the Sacrament, yet he made no 
 " mention of the hanging thereof over the high altar as your 
 '' article proposeth. Nor, how long after, or by what means, 
 '* that came first up into this realm, I think no man can tell. 
 '' And in Italy it is not yet used until this day."-— (Stri/pe's 
 Cranmevy App. 97.) 
 
 The inference to be drawn from this letter is that the two 
 lights ordered by the injunctions of 1547, and which 
 Cranmer had enforced by his Visitation Article in 1548, 
 could not have been placed before the reserved Sacrament, 
 inasmuch as the complaint of the rebels in 1549 is that the 
 Sacrament was not suspended over or placed upon the High 
 Altar. It is remarkable that Dr. Kock, whose knowledo-e 
 as an antiquarian in the matter of Church rites and cere- 
 monies is supposed to be considerable (The Church of our 
 Fathers, Vol. Ill, Part II., p. 208), says, '' That the first 
 ^'^ wooden or stone tabernacle resting on the Altar seen in 
 ^' this land was put up in Queen Mary's reign." 
 
 It appears from Lyndewode's gloss upon the Provincial 
 Constitution of John of Peccham that according to the 
 English custom the reserved Eucharist was placed in a Pyx, 
 and thQPyx in a Tahernaculum, and the Tabernaculum, instead 
 of being placed stationary as it afterwards was in conformity 
 with later Eoman usage upon the Altar, was hung up over 
 it. And in support of Dr. Kock's assertion that in Queen 
 Mary's reign the reserved Sacrament was placed upon the 
 Altar is the inquiry of Cardinal Pole in 1557, ^''Whether 
 '' they do burn a lamp or a candle before the Sacrament ;" 
 and referring to his Injunctions in 1566 this would appear to 
 have been " a tabernacle set in the midst of the High 
 « Altar." 
 
 With respect to the custom of the Greek Church, Goar 
 says: 
 
 " A lamp, kept perpetually burning, is suspended in such 
 " a manner as to hang between the Altar and the place for 
 " the Blessed Sacrament, and is regarded by the Greeks as
 
 114 
 
 ** a becoming token of reverence towards the word of God 
 " inscribed within the sacred volume, and the Word made 
 " flesh, Christ Jesus dwelling us, but veiled under the 
 *^ appearance of the sacramental species." — {Goar, EuchaL 
 GrcRc. p. 15. Hierurgia, p. 507.) 
 
 I was referred by Mr. Prideaux to a treatise in French 
 upon the exposition of the Holy Sacrament of the Altar. 
 It was published in 1673, and the account which the author, 
 a Roman Catholic of course, gives of the practice as to the 
 reserved Sacrament, the importance especially of having a 
 lamp perpetually burning before it, is interesting, and bears 
 upon the subject now under consideration. " Neanmoins/' 
 (says this author) " on ne se met pas en peine comment la 
 " tres-Sainte Euchariste est logee dans les Eglises de la cam- 
 " pagne, ny comment elle est portee aux malades, dans presque 
 " tons les villages, ou elle y est portee dans un si pauvre 
 " appareil, qu'il est plutost capable d'exciter de la douleur 
 " et de I'indignation dans le coeur des veritables fideles, que 
 " de la devotion et du respect. La plus part de ces Eglises 
 *' sont ou desolees, ou decouvertes, ou sans lambris, ou sans 
 " vitres, ou sans luminaires, ou sans livres, ou enfin destituees 
 " sans ornements necessaires pour celebrer dignement les 
 " saints mysteres, et les divins offices. Leurs vaisseaux 
 " sacrez ne sont que d'estain, ou de cuivre, ou raesme de 
 " plomb en quelques endroits ; leurs tabernacles, sont ou 
 " rompus, ou difformes, ou mal-ornez; ou enfin leurs fabriques 
 " VLont point de revenu pour entretenir une lampe toujours 
 " ardente devant le Sanctuaire ou repose VEucharistie. Et 
 " Ton fait tous les jours de grandes depenses dans les villes 
 '' pour I'exposition frequente de ce divin mystere." The 
 author regrets this expense, and continues : " Ne vaudroit-il 
 ^^ pas mieux les employer a la decoration, ou aux reparations 
 «' des eglises de la campagne, et a I'achat des vaisseaux 
 " sacrez, des livres, des meubles et des ornaments dont elles ont 
 " si grand besoin? N'a-ce pas este I'intention de Paul III. 
 " qu elles y fussent employees, comme on le pent voir par les 
 *' paroles de sa bulle que nous avons rapportees?" — {Traite 
 de Vexpositio7i du St. Sacrament de VAutel, ed. 1673, 
 p. 171.) 
 
 It is surely most improbable that Cranmer, who was 
 advancing tentatively in the path of reform, and who 
 was the real author of the Injunctions, should have ordered 
 two lights to be continued perpetually burning before the 
 Reserved Sacrament, having regard to his desire to abrogate 
 the custom of reservation, and also on account of the 
 expense which the ordering would have entailed upon the 
 parishioners.
 
 115 
 
 Gavanto {vol 5, p. 65), writing in Italy his '' Praxis 
 Compendiaria Visitationis Episcopalis" and describing the 
 duties of the bishop on his visitation, under the heading 
 " De Sanctissima Eucharistia," says : 
 
 " Observet Episcopus, et Notarius describat, an sint, 
 " qualia sint, quse sequuntur \' and among these articles is 
 to be found " Basim Tabernaculi vacuam " and " Lampadem 
 " ardentem," which is clearly the one lamp before the 
 Reserved Sacrament 
 
 Symbolism and the worship of symbols are distinct things, 
 " is confirmat usum qui tollit abusum." 
 
 I am disposed to assent to the opinion expressed by 
 Mr. Stephens in his elaborate and useful edition of the 
 Book of Common Prayer : 
 
 " It may, however," that learned person says, *^ be argued 
 '•' that a distinction is to be taken between (1) the lights 
 " burning before shrines and images, (2) the symbolical 
 " lights formerly placed on the altar during the communion, 
 '' and (3) those which are for actual use for the decent 
 " enlightenment of the house of God. The lights men- 
 " tioned in King Edward's Injunctions are not to be con- 
 " founded with the lamp or cresset, a single light, burning 
 " before the suspended Pyx. King Edward's mention of 
 " the Sacrament appears to be merely circumstantial : two 
 '' lights (which are known to be of wax, not one lamp,) 
 " were to be on the altar before the Sacrament or Pyx, * for 
 " ' the signification that Christ is the very true light of the 
 " ' world.' The Pyx was then considered to contain the 
 " actual body of Christ. The removal of the Pyx, in 
 " consequence of the purified doctrine of the Church, did 
 " not weaken the force or propriety of the symbol, as Christ 
 " is spiritually present in His own house. It is to be 
 " remarked that Archbishop Cranmer omits the words 
 " 'before the Sacrament.' "-~(5oo^ of Common Prayer, 
 vol 2, p. 1120.)* 
 
 The usages with respect to the custody of the Reserved 
 Sacrament appear then to have been these : 
 
 (1) The use which Lyndewode refers to as existing in 
 
 Holland, Portugal, and other places, and which 
 apparently existed too in Italy, of keeping it in a 
 place in the wall under lock and key : 
 
 (2) The peculiar English custom of suspending it in a 
 
 Pyx in a Tabernaculum over the High Altar *, 
 
 (3) Cardinal Pole's order in Queen Mary's time, that it 
 
 should be placed upon the Altar. 
 
 * Dr. Hook seems to be of the same opinion on this point. See his Church 
 Dictionary, article " Lights." 
 
 H 2
 
 116 
 
 In Westerton v, Liddell, Dr. Lushington came, appa- 
 rently not without reluctance, to the conclusion that candle- 
 sticks upon the Holy Table were lawful ornaments. 
 
 It seems to me difficult to suppose that the use of candle- 
 sticks does not bear witness to the partial retention, — no 
 uncommon fact in the history of ritual observances, — of the 
 custom of burning lights upon the altar embodied in the 
 earliest usages of the Church in the provincial constitutions 
 of our own country, and in the Injunction of 1547 * 
 
 I should not omit to notice the argument, much referred 
 to by counsel, from the inventories made by order of the 
 Government of Edward the Sixth, in order to stop the 
 wholesale sacrilege and plunder of the furniture and goods of 
 parish churches by those who humbly imitated the rapine 
 which, on a large scale, had been carried on by the courtiers, 
 out of their zeal for the Keformed Religion. 
 
 I am not inclined to rely very much, on the one hand, 
 upon the fact that certain ornaments are proved by these 
 inventories to be de facto in existence after the second year 
 of Edward the Sixth, nor, on the other hand, that only 
 certain of these ornaments were retained, by the commis- 
 sioners who caused these inventories, for the use of parish 
 churches. 
 
 However, the fact is not to be laid wholly out of consider- 
 ation that two or three years after the date of the first Prayer 
 Book there should be in 21 counties no less than 1,400 
 churches which possessed each two candlesticks. Such is 
 the result I believe of an investigation of the inventories in 
 the Record Office, which were taken in 1552, when the 
 second Prayer Book was in course of preparation. 
 
 Inasmuch, therefore, as I think that the Injunctions which 
 order these two lights were issued under statutable authority 
 and have not been directly repealed by the like authority ; 
 inasmuch as they are not emblematical of any rite or 
 ceremony rejected by our Church at the time of the 
 Reformation, inasmuch as they are primitive and catholic 
 in their origin, evangelical in their proper symbolism, purged 
 from all superstition and novelty by the very terms of the 
 Injunction which ordered their retention in the Church, I 
 am of opinion that it is lawful to place two lighted candles 
 on the Holy Table during the time of the Holy Communion 
 '^ for the signification that Christ is the very true light of 
 " the world." 
 
 * It is true that candlesticks possess, as Archdeacon Freeman observes, (Rites 
 and Ritual, p. 76,) a symbolism of their own, and that St. John saw in his 
 vision "golden candlesticks," not burning candles or lamps (St. John, v. 35 ; 
 Rev. V. 8; viii. 3.)
 
 117 
 
 Conclusion. 
 
 These are tlie conclusions at which I have arrived, and this 
 is the Judo-ment which I am about, in formal language, to pro- 
 nounce, after a most anxious, painful, and I may be allowed to 
 add, conscientious, however inadequate, exammation ot the 
 law applicable to the facts of the case. I have not been able 
 to conceal from myself that this exposition of the law may 
 wound the feelings of some, whose love for the <^hurch ot 
 Christ is as unquestionable as their loyalty to the Ohm'ch 
 of Eno-land,— men, who think no ornament too costly, no 
 servic? too magnificent, for the house of God,— capable of 
 any act of self-denial and self-sacrifice to promote these 
 objects,— to whom it may at first appear harsh and illiberal 
 to be told that the sentence of the law bids them forego 
 any symbolical act, or incident of Divine worship, with which 
 they have accustomed themselves to associate m any way the 
 administration of the Blessed Sacrament of the Body and 
 Blood of our Lord ; but I have good hope that further and 
 deeper consideration will convince them of the truth ot the 
 proposition, which I stated at the outset of my Judgment, 
 that no matter of doctrine or faith is affected by this 
 decision, the true result of which is simply to pronounce, 
 that by those statutes, ordinances, and canons, which torm 
 the compact of union between the Church and the btate m 
 this country, it has been determined that certain usages, 
 however in themselves innocent, laudable, and primitive, 
 shall, for the sake of general peace and harmony, form 
 no part of the rites and ceremonies of the Church ot 
 
 Tn Westerton v. LiddeU, the Privy Council said, "Thek 
 " Lordships are not disposed in any case to restrict withm 
 " narrower limits than the law has imposed, the discretion 
 ^^ which within those limits is justly allowed to congrega- 
 " tions by the rules both of the Ecclesiastical and the 
 " Common Law Courts/' . ^• ^ 
 
 The basis of the religious estabhshment m this realm 
 was, I am satisfied, intended by the constitution and the 
 law to be broad and not narrow. Within its walls there is 
 room, if they would cease from Utigation, for both parties ; 
 for that which i-s represented by the promoter and tor that 
 which is represented by the defendant; for those whose devo- 
 tion is so supported by simple faith and fervent piety that 
 they derive no aid from external ceremony or ornament, and 
 who thmk that these things degrade and obscure rehgion ; 
 and for those who think with Burke, that religion " should 
 « be performed, as all public solemn acts are performed, m
 
 128 
 
 " buildings, in music, in decorations, in speech, in the dignity 
 " of persons according to the customs of mankind taught 
 « by their nature, that is, with modest splendour and un- 
 *^ assuming state, with mild majesty and sober pomp ;" who 
 sympathize with Milton the poet rather than with Milton 
 the Puritan ; and who say that these accessaries of religious 
 rites, — 
 
 ^' dissolve them into ecstacies, 
 
 " And bring all Heaven before their eyes." 
 
 Saint Chrysostom and Saint Augustine represented 
 different schools of religious thought ; the Primitive Church 
 held them both. Bishop Taylor and Archbishop Leighton 
 differed as to ceremonial observances, but they prayed for 
 the good estate of the same Catholic Church ; they held the 
 same faith " in the unity of spirit, in the bond of peace, and 
 " in righteousness of life ;" and the English Church con- 
 tained them both. 
 
 There is surely room for both the promoter and the defen- 
 dant in this Church of England, and I should indeed regret 
 if, with any justice, it could be said that this Judgement had 
 the slightest tendency either to injure the Catholic founda- 
 tions upon which our Church rests, or to abridge the liberty 
 which the law has so wisely accorded to her ministers and 
 her congregations. 
 
 I must say a word as to costs. This is a matter to be 
 governed by the discretion of the Court, that is^ by a dis- 
 cretion judicially exercised. 
 
 In the case of Martin v. Mackonochie, it appears that the 
 promoter is not a churchwarden, nor a resident parishioner. 
 Of the five charges brought against Mr. Mackonochie, in 
 which I include the excessive kneeling, upon three there 
 have been adverse decisions to Mr. Mackonochie. With 
 respect to the elevation, Mr. Mackonochie submitted the 
 question to his Ordinary, and discontinued, under his direc- 
 tion, the practice before the institution of this suit, though, 
 it is true, he has done so under protest. 
 
 With respect to the incense, he had discontinued, though 
 also under protest, the censing of persons and things, before 
 the institution of this suit. 
 
 With respect to the excessive kneeling, I have decided 
 that it was a matter that ought to have been referred to the 
 discretion of the Ordinary. 
 
 With respect to the mixing water with the wine, the 
 decision is in favour of the promoter; and with respect to 
 the lights, in favour of the defendant.
 
 119 
 
 Taking all the circumstances into my considerationj I 
 shall make no order as to costs in this case. 
 
 In the other case of " Flamank v. Simpson," the circum- 
 stances are materially different. Mr. Flamank is a church- 
 warden, and Mr. Simpson does not appear to have submitted 
 to the control of his Ordinary any of the practices for which 
 he has been articled in this Court. Upon the question of 
 " lights " the decision is in his favour, and another of 
 the charges was abandoned at the hearing. No expense has 
 been incurred by the examination of any witnesses, and I 
 think I shall, upon the whole, do justice by condemning 
 Mr. Simpson in a sum of 80/. nomine expensarum. 
 
 I admonish Mr. Mackonochie to abstain for the future 
 from the use of incense, and from the mixing water with the 
 wine, as pleaded m these Articles. And I further admonish 
 him not to recur to the practices which he has abandoned 
 under protest, with respect to the elevation of the Blessed 
 Sacrament, and the censing of persons and things. 
 
 I admonish Mr. Simpson to abstain for the future from the 
 elevation of the Blessed Sacrament, from mixing water with 
 the wine, and from placing the alms upon a stool, as pleaded 
 in these Articles.
 
 LONDON: 
 
 Printed by Geoe^e E. Eyre and WiIIlAM SPOTTISWOODE, 
 Printers to the Queen's most Excellent Majesty.
 
 NOTE. 
 
 The Editor has been favoured with the following addition 
 to the series of liistorical facts noticed by the Judge, in his 
 discussion of the argument drawn from the disuse of cere- 
 monies. It appears that there was a time when the obser* 
 vance of Good Friday had almost wholly ceased in England. 
 The then Archbishop of Canterbury, Archbishop Cornwallis, 
 and Porteus Bishop of London, set themselves to revive the 
 observance, which has been maintained ever since ; and it is 
 instructive to notice the feeling with which this revival was 
 met. We extract the following from Restituta, edited by 
 Sir Egerton Brydges, Vol. IV., p. 416 : " It is inconceivable 
 *' the clamour, uproar, and rage which the order from the 
 " Archbishop to observe decently Good Friday, in 1777, 
 " gave to the faction : for many weeks together the presby- 
 " terian newspapers were full of abuse and lies relating to 
 " Archbishop Cornwallis and his family ; and when one 
 *^ expected it should have subsided, two months after the 
 ^^ day was observed, out comes the following long and 
 " severe paragraph in the London * Evening Post ' of 
 " May 29, 1777: 'On the late announcing a sort of out- 
 *' landish name, one Porteus, to an English Bishopric, I 
 ** naturally asked what was become of all our old learned 
 '* and venerable English Clergy, of the best families, that 
 *' they were all passed over with so much contempt and 
 ** injustice ? I was informed that the young Prelate was a 
 " man distinguished by His Majesty's own judgment, and 
 '* exalted by his mere personal favour, as one of the most 
 *' promising talents and disposition to fill the sacred office in 
 *' a manner the most suitable to his own pious feelings and 
 *' sentiments, and the mild and liberal plan of government 
 *' adopted by him. A countenance and a character so clear 
 ** of cynical and ecclesiastical pride and austerity could not 
 ^' escape the penetrating observation and the generous 
 *^^ sympathy of the Royal Patron. A Charles has had his 
 ** favourite Laud. Similar characters and principles will 
 *' always attract each other. It has indeed been insinuated, 
 *' that, over and above the great merit of Scottish extraction
 
 " and interest, he has distinguished himself as a ministerial 
 ^^ writer in the public papers almost as much as by the 
 " stretch of Church power and arrogance in shutting up the 
 " city shops on Good Friday ; which, as a sanctified, hypo- 
 " critical triumph over both reason and Scripture, — the 
 " civil and religious right of Englishmen, — couW not but be 
 " highly acceptable to tyrants and hypocrites of every 
 " denomination, particularly at Court. By this experiment 
 " on the tame and servile temper of the times, it is thought 
 " the Host and Crucifix may be elevated to prostrate 
 " crowds in dirty streets some years sooner than could have 
 "-been reasonably expected. And when a Wedderburne 
 " shall be keeper of the King's conscience and seals, and a 
 " Porteus of the spiritual keys, as the alterius orhis papa, 
 " there is no doubt but our consciences, and our property 
 " too, will be effectually taken care of.' "
 
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