A legal guide for the clergy

"reconcilable with the letter of the rubric, yet we cannot be supposed to be under any obligation to restore the use of them. And, indeed, if that practice which our governors do openly " and constantly permit and approve be not admitted for a good interpretation of laws, whether ecclesiastical or civil, I fear it "will be impossible to clear our hands of many repugnances 66 of different kinds besides this under debate."

The case of Liddell v. Westerton.

It only remains to consider the bearing on this part of the present case of the former decisions of the Judicial Committee in Liddell v. Westerton and Martin v. Mackonochie.

As to Liddell v. Westerton, everything said and done in that case to which the rubric of 1662 was material had reference exclusively to ornaments of the church. The Court had nothing to do with the ornaments of the minister or anything appertaining thereto " (Moore's Special Report, p. 31). The questions whether the power of the Crown, under i Eliz. c. 2, s. 25, had ever been duly exercised, and (if so) with what effect; whether the rubric of 1662 was to be read with that section, as a law still in force, or not; what would be the effect of so reading it, and whether any aid towards the solution of those questions might be derivable from usage, either before or after 1662, and what such usage had been, were none of them before Dr. Lushington, or the Court of Arches, or the Judicial Committee. It was not suggested that anything had ever been done under the Eliz. c. 2, s. 25, as to any ornaments of the church. Under these circumstances it was sufficient, as well as most convenient, to refer to the rubric, and to that alone; the effect of which was, as to that matter, simply coincident and identical with that of the section in the Act of Elizabeth, assuming it to be then in force.

It is perfectly consistent that the rubric should speak with the authority of the statute, so far as the language and effect of both are identical, and yet should not supersede or control the operation of that part of the statute which it does not in terms repeat.

It is true that Dr. Lushington did, in more than one passage of his judgment, signify his assent to what he described as the "irresistible argument that the last Statute of Uniformity, by referring to the first Book of Common Prayer of Edward VI., "excluded not only the Second Book but everything else effected "in the interval between 1549 and 1662, whether by Act of "Parliament or by canon, which could or might have altered "what existed in 1549; and, consequently, that nothing done "from 1549 to 1662, however lawful during that period, had in "itself force or binding authority after the statute of 1662 came

"into operation." Everything which fell from the very learned Judge is entitled to most respectful consideration; but he had not been (as their Lordships now have been) upon the path of inquiry which was really necessary to support or to disprove that proposition.

Nothing to the same effect is to be found in the judgment of the Judicial Committee, which overruled that part of Dr. Lushington's judgment in which these dicta occur, reversing his decision and that of the Court of Arches as to the crosses not connected with the communion-table; and also rejecting as erroneous his view of the meaning of the words ornaments of "the church as used in the rubric; which view had nevertheless been held in both the Courts below to be clear and indisputable.

There is, however, in the judgment of the Judicial Committee, delivered by Mr. Pemberton Leigh, the following passage, which has been much relied on by the appellant :

"It will be observed that this rubric (that of 1559) does not "adopt precisely the language of the statute, but expresses the same thing in other words. The statute says, 'such orna"ments of the church, and of the ministers thereof, shall be ""retained and be in use;' the rubric,' that the minister shall use ""such ornaments in the church.' The rubric to the Prayer Book "of January 1, 1604, adopts the language of the rubric of Eliza"beth. 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 66 or articles which were used under the first Prayer Book of "Edward VI., may still be used. None of them, therefore, can "have any reference to articles not used in the services, but "set up in churches as ornaments in the sense of decorations."

This passage has been the subject, as it appears to their Lordships, of remarkable misconception. It was sufficient for the purpose of the question as to crosses then before the Judicial Committee, to consider only the meaning of the exact words of the rubric itself, standing alone, and the words corresponding to them which were found in the statute of Elizabeth and the rubric of 1559; and to do this with a view only to the interpretation of the two particular phrases, "ornaments of the church," and "by authority of Parliament in the second year of the reign "of King Edward VI." For that purpose of verbal exposition the statement in this passage of the judgment (with the exception of a somewhat inaccurate expression as to the rubric of 1604) was unexceptionably correct. The words of the rubric of 1662, standing alone, and the corresponding words in the statute of Elizabeth and the rubric of 1559 and 1604, do mean what is there stated, neither more nor less. In the Act of Elizabeth there are other and further words, the effect of which, if still in

force, is in the present case very important; but in that part of the judgment of Liddell v. Westerton any examination of the effect of those words, or of the questions arising out of them with reference to any ornaments of the ministers of the church, would have been absolutely irrelevant. Judges weigh their words with reference to the questions which they have to consider, and not with reference to questions which are not before them. If what was then said could properly be applied to a purpose not then in contemplation, the statement that the words of the 25th section of the Act of Elizabeth, the rubric of 1559 and 1604, and the rubric of 1662, “ all obviously mean the same "thing," might more reasonably be alleged in proof that the Judicial Committee thought the words " according to the Act of "Parliament set forth in the beginning of this book," or the words, " until other order taken therein," &c., were still implied at the end of the rubric of 1662, than the succeeding words can be relied on to show that they held all the vestures of the clergy prescribed by the first Book of King Edward to be lawful at all the three epochs referred to—1559, 1604, and 1662.

The case of Martin v. Mackonochie.

With respect to the decision of the Judicial Committee in Martin v. Machonochie, little need be said. There, too, it was sufficient to consider the effect of the mere words of the rubric of 1662, repeating (as it did) in 1662 the language of the Act of the first year of Elizabeth, on a point unaffected by anything done in the meantime. The points determined in Liddell v. Westerton are succinctly stated, approved, and followed. There is no reference to the particular passage, in the judgment of Liddell v. Westerton, on which the appellant's counsel rely; though, if there had been, their Lordships would have been of opinion, for the reasons already stated, that the present question would be in no way affected by it.

Their Lordships, for these reasons, which, out of respect for the elaborate arguments so earnestly addressed to them, and not from any hesitation as to the decision at which they should arrive, they have expressed, at a length greater than is usual, are of opinion that the decision of the learned Judge of the Arches Court as to the vestments worn by the appellant, following that of this Committee in Hebbert v. Purchas, is correct, and ought to be affirmed.

II. THE EASTWARD POSITION.

Their Lordships will now proceed to consider the charge against the appellant with reference to his position during the Prayer of Consecration.

The allegation upon that head is that the appellant, when officiating in the service of the Holy Communion, unlawfully stood, while saying the Prayer of Consecration in the said service, at the middle of the west side of the communion-table, such communion-table then standing against the east wall, with its shorter sides towards the north and south, in such wise that during the whole time of his saying the said prayer he was between the people and the communion-table, with his back to the people, so that the people could not see him break the Bread or take the Cup in his hand.

The rule by which the position of the minister during the celebration of the Holy Communion is to be determined must be found in the rubrical directions of the Communion Office in the Prayer Book, there being, as to this matter, nothing in any statute to control or supplement those directions.

In examining these directions, their Lordships proposed to put aside the argument, very much pressed upon them, that the proper and only proper position for the communion-table is in the body of the church, or in the middle of the chancel, and that it is in a wrong position when placed, at the time of the Communion service, along the east wall. They think this argument has no sufficient foundation. No charge is made that in the church of the appellant the communion-table stood where it ought not to have stood, and, in the opinion of their Lordships, no such charge could have been sustained.

The rubric, indeed, contemplates that the table may be removed at the time of the Holy Communion; but it does not, in terms, require it to be removed. Morning and Evening Prayer are, according to one of the early rubrics of the Prayer Book, to be used in the accustomed place of the church, chapel, or chancel. In churches where it is customary to use both the chancel and body of the church, or the chancel alone, for Morning and Evening Prayer, the direction that the table shall stand "where morn"ing and Evening Prayer are appointed to be said," is satisfied without moving it. That direction cannot be supposed to mean that the position of the table is to be determined by that of the minister's reading-desk or stall only, the service being "used" and "said " by the congregation as to the part in it assigned to them, as well as by the minister. The practice as to moving or not moving the table has varied at different times. It was generally, if not always, moved in the earlier part of the postReformation period. When the revision of 1662 took place, and when the present rubric before the Prayer of Consecration was for the first time introduced, it had come to be the case that the table was very seldom removed. The instances in which it has been removed may be supposed from that time to have become still more rare; and there are now few churches in the kingdom in which, without a structural rearrangement, the

table could be conveniently removed into the body of the church. The utmost that can be said is that the rubrics are to be construed so as to meet either hypothesis.

Their Lordships have further to observe that the rubrics assume that, before the Prayer of Consecration is reached, those who intend to communicate will have drawn near to the communion-table, wherever it may be placed, so as to concentrate the communicants near it or round it, and thus enable them to witness the ministration more easily than if they had remained in their places throughout the church. It is proper also to point out that the term "ward" nowhere occurs in the rubrics. is made of the north side, it seems to be supposed that in all churches that expression would represent a uniform position, and there is no doubt that from the almost universal eastward position of churches in England this would be the case; but the north is the only point of the compass which is actually referred to.

east or eastFrom the mention that

During several portions of the Communion Office the minister is directed, either expressly, or by reference or implication, to stand at the north side of the table. Where this is the case, their Lordships have no hesitation in saying that whether the table is placed altar-wise along the east wall, or standing detached in the chancel or church, it is the duty of the minister to stand at the side of the table which, supposing the church to be built in the ordinary eastward position, would be next the north, whether that side be a longer or shorter side of the table. No doubt in a certain context the word "side" might be so used as to be shown by that context to be contra-distinguished from the top, or bottom, or end of a subject of quadrilateral or any other figure. But for this purpose a determining context is necessary. In the absence of such a context it is accurate, both in scientific and in ordinary language, to say that a quadrilateral table has four sides. In the rubrics not only is there no context to exclude the application of that term to the shorter as well as the longer sides; but the effect of the context is (as it appears to their Lordships) just the reverse. The direction is absolute, and has reference to one of the points of the compass, which are fixed by nature; the figure and the position of the table are not fixed either by nature or by law; and the purpose of the direction is to regulate, not one part or another of the table, but the position of the minister with reference thereto. Under these circumstances, it seems extravagant to put on the word "side" a sense more limited than its strict and primary one, for the purpose of suggesting difficulties in acting upon the rule, which for nearly two centuries were never felt in practice, and which would not arise if the strict and primary sense were adhered to.

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