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“We find it convenient to adopt the order followed by
the learned Dean of the Arches, and to examine first, the charge of wearing and causing to be worn, a chasuble, tunics, or tunicles and albs, in the cele
bration of the Holy Communion.” I. Their Lordships, after these preliminary remarks, proceed as follows:"It is necessary to review shortly the history of the
Rubric, usually known as the Ornaments-Rubric,
which governs this question. “The first Prayer Book of King Edward VI, 1549, con
tains the following Rubric at the beginning of the
Communion office : "Upon the day and at the time appointed for the
ministration of the Holy Communion, the priest that shall execute the holy ministry shall put upon him the vesture appointed for that ministration, that is to say, a white albe, plain, with a vestment or cope, and where there be many priests or deacons, then [for then read there] so many shall be ready to help the priest in the ministration as shall be requisite, and shall have upon them likewise the vestures appointed for their ministry, that is to
say, albes with tunicles.'” II. They next observe that: " In the second Prayer Book of Edward VI (1552) this
was altered, and it was ordered that the minister shall use neither albe, vestment, nor cope, but being archbishop or bishop he shall have and wear a rochet, and being a priest or deacon he
shall have and wear a surplice only.'” It is worth while to notice here that, notwithstanding the language of this Rubric, regard was had to the feelings and wishes of the people where they were attached to the old practices; for the Royal Commissioners, who were appointed to take Inventories of the Church goods after the Second Prayer Book came into use, had “discretion” to leave in the Churches other things besides those which they were expressly ordered to reserve for Divine Service. The Judicial Committee in Liddell v. Westerton themselves refer to this, they say "the Com
"missioners 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, “band also such other ornaments as by their discretion shall
seem requisite for the Divine Service in every such place for ««the time.” (Moore's Report, p. 157.)
' It is quite plain from numerous Inventories of the period, that in many cases they did leave “for use in the Church ” Ornaments which it was clearly illegal and highly penal to use if the Rubric had been construed strictly by the Authorities at that time. (See English Church Union case, Dec. 1866, pp. 47–59, reprinted in First Ritual Report, pp. 149–151.)
It may be mentioned here that the Judicial Committee in Liddell v. Westerton, were not indifferent to the feelings of the parties interested, for they observe that
The evidence as to the wishes of the parishioners upon this subject appears to their Lordships to show (what, in such a case, might perhaps be expected) that with respect to these Ornaments there are many persons of great respectability, who, from conscientious motives, are strongly attached to them; many of equal respectability, who, from motives equally conscientious, feel an invincible repugnance to them; and some, it may be hoped not a few, who, whatever opinion they may form of their intrinsic value, consider them as of no importance whatever in comparison with Christian charity and concord, and who, whether they approve, or whether they disapprove, of them, would infinitely rather sacrifice their individual feelings and opinions than secure their triumph at the expense of disturbing and distracting the Church of which they are members.” (Moore, p. 151.) III. The Judicial Committee then proceed to say that :“The Prayer Book of Elizabeth (A.D. 1559) provided
that the minister at the time of the communion, and at all other times of (for of read in] his ministration, shall use such ornaments in the church as were in use by authority of Parliament in the second year of the reign of King Edward [the sic] VI, according to the Act of Parliament set in the
beginning of this book.'' Upon this Rubric their Lordships comment thus :“ This Committee has already decided (Liddell v. Wes
terton), that the words 'by authority of Parliament
in the second year of the reign of King Edward VI,'
refer to the first Prayer Book of King Edward VI." The Judicial Committee treat this Decision as having settled the meaning of this one part of the Rubric: yet the same Court also “decided," in equally explicit terms, the meaning of the rest of the Rubric; for, comparing the language of the Rubric of 1662 with the Rubric of 1604 and with the Rubric and Act of Elizabeth, they said that "they all obviously mean the same " thing, that the same dresses and the same utensils, or articles, .“ which were used under the first Prayer Book of Edward the “Sixth may still be used.” (Moore, p. 159.). The Court, in the case of Hebbert v. Purchas, appear to have considered themselves bound by one part of the interpretation of the Ornaments Rubric, given in Liddell v. Westerton and adopted in Martin v. Mackonochie; if, as it would seem, they held these decisions to have stereotyped the construction of that part, how were they free to re-consider the rest of a construction which had also been given and adopted under the same conditions and on the same occasions? Had their Lordships referred, indeed, to objections which notoriously have been made to the meaning assigned to “Second Year" in Liddell 0. Westerton, and said that they were satisfied with that meaning, the position would have been consistent with their discussing the remaining interpretation of the Rubric: as it is their course is unintelligible and seems entirely arbitrary.
Under these circumstances it may be useful to point out some difficulties which lie in the way of accepting unreservedly the interpretation of “Second Year" as laid down by the Judicial Committee in Liddell v. Westerton, and which would at least deserve consideration should the construction of the entire Rubric be discussed at any future time before this or some other Court competent to decide the question. That Court, after noticing the argument at the Bar,” thus comments upon
it : “There seems no reason to doubt that the Act in question received the Royal Assent in the Second year of Edward the Sixth. It concerned a matter of great urgency which had been long under consideration, and was the first Act of the Session; it passed through one House
of Parliament on January the 15th, 1549, N.S., and the other on the 21st of the same month; and the Second Year of the Reign of Edward the Sixth did not expire till Jan. 28th. In the Act of the 5th and 6th Edward the Sixth, cap. 1, sec. 5, it is expressly referred to as the Act made in the second year of the King's Majesty's reign.
“ Upon this point, therefore, no difficulty can arise. It is very true that the new Prayer Book could not come into use until after the expiration of that year, because time must be allowed for printing and distributing the Books; but its use, and the Injunctions contained in it, were established by authority of Parliament in the second year of Edward the Sixth, and this is the plain meaning of the Rubric." (Moore, p. 160.)
Now, with the utmost deference to the opinion of the Court on this matter, it is not in the least disrespectful to point out that there are very strong reasons for questioning its conclusions; nor is it improbable that a fuller knowledge of the facts might have varied their Lordships' view. And, first, it must be said that there is really much reason, instead of " no reason to doubt “ that the Act in question received the Royal Assent in the “ Second Year of Edward the Sixth.”
(1) The date of the Royal Assent is no where given, apparently. It is not mentioned in the Journals of the Lords, nor in the Statutes of the Realm, nor in the Parliament Roll; indeed it appears doubtful whether it was the practice to record the date in any Instrument used for giving the Royal Assent: the Commissions of the period are said to have been destroyed some years since, as being useless; but probably they would not have determined the point.
(2) The custom of the time was to give the Royal Assent at the end of the Session to all the Acts of the Session; and it appears from the Journals of the Commons, Nov. 21, 1554, that a question arose whether the Session would be terminated by the Royal Assent being given to a single Bill.* The point was, indeed, ruled in the negative: but in 1670-71 it appears to have been considered necessary to prevent the doubt; for in a case
*“The Bill for Cardinal Poole, sent up to the Lords by Mr. Treasurer, Mr. S. Petre, &c.
“Mr. Treasurer declared, that the King and Queen will be To morrow Afternoon in the Parliament-house, to give their Assent to that Bill.
“Upon a question asked in the House, if, upon the Royal Assent, the Parliament may proceed without any Prorogation ;
" It is agreed by Voices, that it may."
of emergency* which led to the enactment of the 22 & 23 Car. II., cap. 1, the 7th Section is in these words“ Provided “alwayes and it is hereby declared and enacted That His “ Majesties Royal Assent to this Bill shall not determine this “ Session of Parliament."
(3) The Journals of the House of Lords mention that the King was present (“ Presens Rex”) on March 14th, 1548-9, and prorogued the Parliament until the 4th November following; therefore nothing can be more likely than that this Act, together with all the Acts of the 2nd Session, received the Royal Assent on that day. They are sixty in number and are styled “Acts passed in the Second Session of Parliament, “holden and begun at West. the 24th Day of November, Anno “Regni Regis Edwardi Sexti Secundo; and continued until “the 14th Day of March, Anno Regni dicti Regis Edwardi “ Sexti Tertio."
(4) The original Act is endorsed “2 and 3 Edward VI;" and in the margin of the “ Long Calendar of the Acts” it is marked, with the rest," ao 2° et 3° Edw. VI. 1."
, But, further, their Lordships mention that the Act is "ex“pressly referred to” in the 5 and 6 Edw. VI, cap. 1, s. 5, as being “made in the Second Year” of that King. No doubt the Act was “made" in that year, in the sense of having passed both Houses of Parliament before January 28th, but the question is—whether it was in force in that year in virtue of the Royal Assent having been given before the Second Year expired-and certainly no evidence has hitherto been produced to prove this: while, as to the reference itself, it has been pointed out that “this “is no conclusive evidence,” owing to the language of other contemporary Statutes: "for we find," says Mr. Pinnock, "the Act, “2 and 3 Edw. VI, c. 10, cited in 5 and 6 Edw. VI, c. 3, s. 4, "as having been passed in the third year of Edw. VI; while two “later Statutes are cited as having been passed in the second year: “the Act 2 and 3 Edw. VI, c. 20, is represented in 1 Eliz., c. “4, s. 13, as having been passed in the second year of Edward
. “VI; and 2 and 3 Edw. VI, c. 21, is stated in 5 and 6 Edw. VI,
* It was “ An Act to prevent malitious maiming and wounding" made in consequence of an attempt to injure Sir John Coventry when attending Parliament: it was necessary for the ends of Justice that it should take effect at once.