blishing and maintaining, as far as possible, a clear and unvarying interpretation of rules the stringency and effect of which ought to be easily ascertained and understood by every clerk before his admission to holy orders.

On the other hand, there are not, in cases of this description, any rights to the possession of property which can be supposed to have arisen by the course of previous decisions; and in proceedings which may come to assume a penal form, a tribunal, even of last resort, ought to be slow to exclude any fresh light which may be brought to bear upon the subject.

It is further to be borne in mind that in the case of Hebbert v. Purchas, the Judicial Committee, although they had before them a learned and able judgment of the then Dean of Arches in favour of Mr. Purchas on the points now raised, had not the advantage of an argument by Mr. Purchas' counsel on those points.

These considerations have led their Lordships to the conclusion that, although very great weight ought to be given to the decision in Hebbert v. Purchas, yet they ought in the present case to hold themselves at liberty to examine the reasons upon which that decision was arrived at, and, if they should find themselves forced to dissent from those reasons, to decide upon their own view of the law.

I. THE VESTMENTS-ALB AND CHASUBLE.

Their Lordships will now proceed to consider the first charge against the appellant-namely, that of wearing an alb and chasuble. They will, however, premise that they do not propose to express any opinion upon the vestures proper to be worn by Bishops, as to which separate considerations may arise; and in referring to the dress of the parochial clergy, they will, for greater convenience, use the term vestments for the purpose of denoting the alb and chasuble or cope, as distinguished from the surplice.

The Ornaments Rubric.

The argument of the appellant on this head, which was very clearly and very forcibly stated, may be thus summed up. The Ornaments Rubric, he contends, in the revised Prayer Book of 1662 is now the only law as to the vesture of the clergy. It contains within its one sentence all that is now enacted upon that subject. It sweeps away all previous law as to the vesture of the clergy, whether that law was to be found in statute, canon, injunction, or otherwise. It authorises the use of all ornaments which had the parliamentary authority of the First Prayer Book of Edward VI. The vestments in question are among the orna

ments which had this parliamentary authority; therefore it authorises the use of the vestments in question.

To this reasoning, if the first proposition in the series be correct in point of fact and law, no exception could, probably, be taken. Their Lordships are, however, unable to accept that proposition. They are of opinion that it is a misapprehension to suppose that the rubric note of 1662 as to ornaments was intended to have, or did have, the effect of repealing the law as it previously stood, and of substituting for that previous law another and a different law, formulated in the words of that rubric note, and of thus making the year 1662 a new point of departure in the legislation on this subject.

Before, however, proceeding to trace the history of the law, their Lordships must observe upon the expression in the argument which asserts that the Ornaments Rubric "authorises the use of the vestments in question. In the opinion of their Lordships, if the only law as to the vesture of the clergy is to be found in the Ornaments Rubric, the use of the vestments of the First Edwardian Prayer Book is not merely authorised, it is enjoined. It is not an enactment ordering the accomplishment of a particular result, and suggesting or directing a mode by which the proposed result may be attained. The sole object of the rubric is to define the mode of performing an existing ministration. If the rubric is taken alone the words in it are not optional, they are imperative; and every clergyman who, since 1662, has failed, or who may hereafter fail, to use in the administration of the Holy Communion the vestments of the First Edwardian Prayer Book, has been, and will be, guilty of an ecclesiastical offence rendering him liable to heavy penalties. Any interpretation of the rubric which would leave it optional to the minister to wear or not to wear these vestments, not only would be opposed to the ordinary principles of construction, but must also go to the extent of leaving it optional to the minister whether he will wear any official vesture whatever. If the rubric is not imperative as to the alb, and the chasuble or cope in the Communion Office, it cannot be imperative as to the surplice in the other services, or any of them.

The Books of Edward VI. and the Act of Uniformity.

It is necessary now to ascertain the state of the law before the Act of Uniformity and rubric of 1662; and then to examine whether any and (if any) what alteration was made by that Act and rubric.

In the First Book of Edward VI. (1549) the directions as to the vestures of the ministers officiating in the public services of the Church (omitting all that relates to hoods and the directions as to Bishops) were as follows :—

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In the saying and singing of Matins and Evensong, baptising and burying, the minister was to use a surplice. In the administration of the Holy Communion the celebrant was to put upon him a white albe plain, with a vestment or cope," and the assistant-ministers (priests or deacons) were to "have upon "them likewise the vestures appointed for their ministry"namely, albes with tunicles."

These directions were omitted from the Second Book of King Edward (1552); and, instead of them, a rubric was inserted, immediately before the Order for Morning Prayer, in these words: "And here it is to be noted that the minister, at the "time of the Communion, and at all other times in his ministra. ❝tion, shall use neither alb, vestment, nor cope; but "being a priest or deacon, he shall have and wear a surplice only." This book was "annexed and joined" to the statute 5 & 6 Edward VI. c. 1, and was established as law thereby.

King Edward died within a few months after the time appointed for this statute to take effect, and the reaction under Queen Mary followed. Upon the accession of Queen Elizabeth, the Legislature, reverting to the state of matters which had existed when the Second Book of Edward was introduced, determined at once to restore the Liturgy and Offices of religion contained in that book, with a few specified alterations, but to leave the question of the vestures of the ministers of the Church open for further consideration. The natural course under these circumstances was that adopted-viz., to "retain" the use of the vestures which had been authorised before 1552, until a final settlement of that question could conveniently be made.

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No new or revised Prayer Book was annexed to Queen Elizabeth's Act of Uniformity (1 Eliz. c. 2); but the Second Book of King Edward, "with the alterations and additions therein, "added and appointed by this statute" (viz., one alteration or "addition of certain lessons to be used on every Sunday in the year, and the form of the Litany, altered and corrected, and two sentences only added in the delivery of the Sacrament to the "communicants," as specified in the 3rd section), was directed to stand and be in full force and effect from the 24th June, 1559.

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The enactment, however, that the Second Book of King Edward was to be used, with these alterations and additions, "and none other or otherwise" (sec. 3), was further qualified by the provisos contained in the 25th and 26th sections, of which the former is in these words :

"Provided always, and be it enacted, that such ornaments of "the Church, and of the ministers thereof, shall be retained and "be in use, as was in this Church of England by authority of "Parliament in the second year of King Edward VI., until other "order shall be therein taken by the authority of the Queen's Majesty, with the advice of her Commissioners, appointed under

"the Great Seal of England for causes ecclesiastical, or of the Metropolitan of this realm."

In this manner, and not by any textual alteration of the rubrics in the Second Book of King Edward, the directions as to ornaments of the First Book were kept in force until other order should be therein taken, in the way provided by the Act.

The authorities whose duty it was to issue to the people, in 1559, a printed Book of Common Prayer, made conformable to the statute, prefixed to the book so issued by them a copy, in extenso, of the statute of Elizabeth itself; and they also of their own authority, not by way of enactment or order, but by way of a memorandum or reference to the statute, substituted a new admonitory note or rubric for the note immediately preceding the Order of Morning Prayer in the Second Book of King Edward.

That note or rubric, as is pointed out by Bishop Gibson,* was not inserted by any authority of Parliament. It was meant to be a compendious and convenient summary of the enactment on this subject. If it was an accurate summary, it was merely a repetition of the Act. If it was inaccurate or imperfect, the Act, and not the note, would be the governing rule.

It is of importance to bear in mind, that the Ornaments Rubric, which it is now contended contains the whole enactment or law relating to the vesture of the clergy, was not, when originally introduced in 1559, and was not meant to be, an enactment at all; and it in fact ended with a reference to the statute 1 Eliz. c. 2, set out in the beginning of the Prayer Book, in terms which showed that the rubric claimed no intrinsic authority for itself.

The statute, by its 25th section, had enacted that the ornaments of 1549 should be retained and be in use, but only until other order should be therein taken, by the authority of the Queen, with the advice therein mentioned. The enactment was therefore in its nature provisional, and prepared the way for the subsequent exercise of a power reserved to the Queen. If that power was not exercised, the enactment in the 25th clause would remain absolute. If the power was exercised, the order made under the power would not be an order in derogation or by way of repeal of the Act; but the order would be in pursuance of and read into the Act as if that which was done by virtue of the reserved power had originally been enacted in the statute.

Authority of the Advertisements of Elizabeth.

Did, then, Queen Elizabeth ever take other order within the meaning of the 25th section?

Their Lordships do not think it necessary to dwell upon the Injunctions of Queen Elizabeth, and still less upon the interpre*Codex, Edn. 1761, p. 296.

tation of those Injunctions; because they cannot satisfy themselves, either that the Injunctions pointed to the vestments now in controversy, or that they were issued with the advice required by the section of the Act of Parliament.

But their Lordships are clearly of opinion that the Advertisements (a word which in the language of the time was equivalent to "admonitions" or "injunctions") of Elizabeth, issued in 1566, were a "taking of order," within the Act of Parliament, by the Queen, with the advice of the Metropolitan.

It is not disputed that these Advertisements were issued with the advice of the Metropolitan, and, indeed, also with the advice of the Commissioners for Causes Ecclesiastical; but it is said that they were not a taking of order by the Queen.

The Queen had in the most formal manner, by her Royal Letters, commanded the Metropolitan and other prelates to prepare these Advertisements, directing them "so to proceed "by order, injunction, or censure, according to the order and appointment of such laws and ordinances as were provided by "Parliament, and the true meaning thereof, so as uniformity "of order might be kept in every church, and without variety or contention."

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There was no particular form required by statute or by law in which the Queen was to take order, and it was competent for Her Majesty to do so by means of a Royal Letter addressed to the Metropolitan. The Advertisements were issued by the prelates as orders prepared under the Queen's authority.

Immediately after their issue, on the 21st May, 1556, Grindal, Bishop of London, writes* to the Dean of St. Paul's, requiring him to put them in force, and stating that they were issued by the Queen's authority, and that he (Grindal) would proceed to deprive any who should disobey them. The Articles of Archbishop Parkert speak of them as Advertisements set forth "by "public authority." In 1583, in Articles presented to the Queen herself by the Archbishop and some of the Bishops, they are referred to as the "Book of Advertisements," and in the margin as the "Advertisements set out by her Majesty's authority."

Against this it is said that there is, nevertheless, other matter in the 'Parker Correspondence' (lately for the first time published in a collected form, though it was partially known to some historical writers of the last century, who drew from it similar inferences), from which it ought to be inferred, as a matter of fact, that the Book of Advertisements was published without Queen Elizabeth's sanction.

Their Lordships cannot lend any countenance to the suggestion that the legitimate inference to be drawn from the tenor and language of public documents, from the acts done under them, *MS. from Dom. Eliz. vol. xxxix., No. 76. + Card. Doc. Ann. p. 320. 153 State Papers, Domestic, No. 31.