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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 proprio rigore. Moreover, this court upon many points is governed, in the absence of express statute or canon, by the jus tacito et illiterato hominum consensu et moribus

expressum.

"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. Published 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." Sir Robert Phillimore then proceeded thus: "Upon this principle, in 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.

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There is one important rule applicable to the construction of all instruments, namely, that the construer should endeavour 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."

He supported this view by the case of Escott v. Mastin (u), already referred to, in which a question as to the lawfulness of baptism, administered by a layman with water and the invocation of the Trinity, was mooted, and the Privy Council observed as follows:

"The 68th canon being that upon which this proceeding is

(t) Shipden v. Redman, Palm. p. 296; vide supra, p. 645.

(u) 4 Moo. P. C. C. p. 104; vide supra, p. 494.

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 14 Charles 2, c. 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 subjectmatter, and have another meaning and construction when it deals with a matter that has already been made the subject of enactment or direction; 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 is it necessary to note the original state of the law, when it is the common law that comes in question, as well as the statute.

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"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 provisions, 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 provision 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."

He continued, "Let me apply this rule to the subject before Omission not me. The first Prayer Book of Edward VI. contains only one necessarily prohibition. prohibition, 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' Fair linen 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 unwritten use, the foundation of a common law for the church, not less than for the state.

cloth.

"Just as much as it must have intended by the rubric in our Credence present Prayer Book: The priest shall then place upon the Table. 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 these two lights was legally binding upon, and must have been a part of the furniture of, those churches which adopted the use of Sarum, at least in the province of Canterbury. Another illustration is furnished by the very remarkable fact that the second Prayer Manual acts. 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 consequences 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.

Bishop Cosin.

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"And in this opinion I am strengthend 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 the '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 (x).

"The opinion of Bishop Cosin (y), a high authority upon this subject, appears to me sound. 'And it is to be noted that the book does not every where 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, then here, give over their endless cavils, and let ancient custom prevail, the thing which our church chiefly intended in the review of this service.'

(2) Cardwell, Conferences (3rd (y) Works, vol. v. p. 65. ed.), pp. 321, 363.

"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 principles upon which the formularies of the church are founded.

"I must repeat that the rubrics with respect to decorations Rubrics not and furniture of the church are not exhaustive. This point has exhaustive. 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 cloths for the holy table. They allowed also the use of a moveable ledge for the purpose of holding candlesticks upon the holy table. ...

" (=).

SECT. 3.-Ornaments and Vestments of Bishops and Ministers.

Those of bishops have been already mentioned in the Chapter on Bishops (a).

There seems no doubt that a surplice is the authorized Surplice. ornament or vestment of the minister at matins, evensong, baptizing and burying as provided by the rubric at the end of the first Prayer Book of Edward VI. which will be quoted immediately, and that (as Dr. Burn observed (b)) there is no vestment prescribed for marrying or for churching of women.

The controversy as to the proper Eucharistic vestments of Eucharistic priests and deacons was first submitted to direct judicial decision vestments. in the case of Mr. Purchas. The following passages taken from

the judgment of Sir Robert Phillimore in that case (c) state

fully the various positions which had been taken.

"The rubric (for I shall use this expression for the sake of Rubric. clearness), which it is admitted contains the law as to the vestments of the bishop, priest and deacon, is as follows:

"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 were in this Church of England by authority of parliament, in the second year of the reign of King Edward the Sixth.""

(z) Liddell v. Beal, 14 Moo.,

P. C. C. p. 1.

(a) Vide supra, Part II., Chap. I., pp. 48, 49, and notes thereto.

(b) Ecclesiastical Law, vol. iii. p. 437.

(c) Elphinstone v. Purchas, L. R., 3 Adm. & Eccl, p. 66,

Prayer
Book of

2 Edw. VI.

Prayer Book of 5 & 6 Edw. VI.

Elizabethan
Act of
Uniformity.

"The rubrics in regard of vestments in the first Prayer Book of Edward VI., to which I am referred by the present rubric, were as follows:

"(1.) At the beginning of the Communion Service—

"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, 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.'

"(2.) At the end of the Communion Service

"And though there be none to communicate with the priest, yet these days (after the liturgy ended) the priest shall put upon him a plain albe or surplice, with a cope, and say all things at the altar (appointed to be said at the celebration of the Lord's Supper) until after the offertory.'

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(3.) At the end of the Book of Common Prayer, after the exposition of ceremonies :

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In the saying or singing of matins and evensong, baptizing, and burying, the minister in parish churches or chapels annexed to the same, shall use a surplice; and in all cathedral churches and colleges, the archdeacons, deans, provosts, masters, prebendaries, and fellows, being graduates, may use in the choir, besides their surplices, such hoods as pertaineth to their several degrees which they have taken in any university within this realm; but in all other places every minister shall be at liberty to use any surplice or no. It is also seemly that graduates when they do preach should use such hoods as pertaineth to their several degrees. 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 rochet, 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.'

"These rubrics were abolished by the second Prayer Book of Edward VI., which substituted the following:

“The minister at the time of the communion, and at all other times in his ministration, shall use neither alb, vestment, nor cope; but being archbishop or bishop he shall have and wear a rochet, and being a priest or deacon shall have and wear a surplice only.'

"All these rubrics, and the services to which they belong, were repealed in the reign of Queen Mary (d).

"By the next Act of Uniformity (e) it was 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 taken by the authority

(d) 1 Mar. sess. 2, c. 2.

(e) 1 Eliz. c. 2, s. 25.

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