Read v. Bishop of Lincoln. ception of the elements, the choir, with the respondent's sanction, sang the words of the Agnus.

5. Whilst pronouncing the absolution, he raised his right hand and made the sign of the cross with it, looking towards the congregation; and whilst pronouncing the blessing he held his pastoral staff in his left hand and made the sign of the cross with his right hand.

6. After the blessing, the remains of the consecrated elements were, as far as could so be, reverently eaten and drunk; and then one of the assistant priests, with the respondent's sanction, poured water into the paten, and wine and water into the chalice, and the contents of the paten and chalice were then reverently consumed by the respondent.

And that on the second occasion

1. During the celebration, down to the creed, he stood or knelt, as required by the rubrics, in front of the holy table, and at the northern part thereof; during the reading of the ten commandments he turned to the people, as directed by the rubric.

2. Whilst reading the prayer of consecration he stood with his face to the east, between the people and the holy table, and before the people; but he had no wish or intention to prevent the communicants present from seeing him break the bread and take the cup into his hand.

3. Whilst pronouncing the absolution, the respondent raised his right hand and made the sign of the cross with it, looking towards the congregation; and whilst pronouncing the blessing the respondent held his pastoral staff in his left hand, and made the sign of the cross with his right hand.

4. After the blessing, the remains of the consecrated elements were, as far as could so be, reverently eaten and drunk; and then one of the assistant priests, with the respondent's sanction, poured water into the paten and into the chalice, and the contents were then reverently consumed by the respondent.

On the 4th of February, 1890, the case came on to be heard by the Archbishop, with whom sat the following Bishops of the province as Assessors-namely, the Bishop of London, the Bishop of Hereford, the Bishop of Oxford, the Bishop of

Rochester, and the Bishop of Salisbury. The Vicar-General was also present.

At the hearing viva voce evidence was given on behalf of the appellants that the communion service at St. Peters-at-Gowts on Sunday, the 4th of December, 1887, commenced at 8.40 A.M.; that throughout the service it was broad daylight, and there was no need for lights, yet throughout the service two candles were kept burning on the communion table. That the respondent was the principal celebrant at the service, and read the prayer of consecration, standing while so doing in front of the communion table, with his back to the people, and his face to the east throughout, so that the persons present would not see the respondent performing the manual acts. That immediately the benediction had been pronounced, the respondent, standing on the west side of the communion table, faced east, turning his back to the people, and appeared to partake of the bread and the wine remaining after the communicants had partaken, and that the remains of the consecrated elements were so consumed. That the respondent then turned to his right, and faced south, and an assistant clergyman went to the credence table and brought wine and water in two glass cruets, which he poured into the paten and into the cup in due course. The respondent then rinsed the paten, and poured the rinsings thence into the cup, and drank the rinsings. The respondent then turned again to the assistant clergyman, who again poured water into the cup, which the respondent rinsed again, and then he drank the rinsings; he placed the cup upon the table, then elevated it, and took the mixture of water and wine.

Evidence similar to this was given with respect to the respondent's acts at the cathedral church at Lincoln on the 18th of December, 1887, when the respondent was again the principal celebrant. That during the service in the cathedral on the 18th of December, 1887, the respondent throughout stood on the west side of the communion table, and never was on the north side at all.

The Archbishop, on the 21st of November, 1890, delivered his judgment, wherein he pronounced with respect to the mixed

Read v. Bishop of Lincoln. chalice that the mixing of the wine in and as part of the service is against the law of the Church, but found no ground for pronouncing the use of a cup mixed beforehand an ecclesiastical offence. With respect to ablution, that it would have been illegal to vary the service by making the ceremony of ablution charged in the articles or the like appear to be part of it, but that the evidence did not shew this was done. With respect to the eastward position in the first part of the communion service, that in order to make the act described in the articles and evidence an illegal act, it would be necessary to prove that no interpretation or accommodation of the term "north side," except "north end," was correct in point of language, and that the position at the "north end" had been required by at least some authority since the last revision of the Prayer Book, and that no other had been practically permitted. That this was not proved. That it was necessary, therefore, that the charge presumably intended to be brought against the Bishop in the 9th article should be dismissed, although not on the ground alleged in the responsive plea. With respect to singing of the anthem, "O Lamb of God," the Court held that it is not illegal to introduce into the service of the Church any hymn or anthem which is not ordered by the rubric; that it was not illegal to do so in the communion service immediately after the reading of the prayer of consecration and before the reception of the elements; and that the words of the hymn or anthem commonly called the Agnus were not so unsuitable to be sung that they were virtually illegal; and the Court decided that the singing alleged in the articles and admitted in the plea was not an illegal addition to the service. With respect to the use of lighted candles on the communion table, the Court held that the lawfulness of lighting two candles upon the communion table in the course of the service was not before it; but that it did not find sufficient warrant for declaring that the law was broken by the mere fact that two lighted candles, when not wanted for the purpose of giving light, were standing on the holy table continuously through the service, nothing having been performed

or done which came under the definition of a ceremony by the presence of two still lights, alight before it begins until after it ends. And the Court found that the charges in the articles with reference to the eastward position during the prayer of consecration, and the concealment of the manual acts, and with respect to the making of the sign of the cross during the absolution and benediction respectively, had been established with respect to both the occasions mentioned in the article, and held that the acts done were illegal. The Court, however, pronounced no further judgment or sentence in reference to the offences of which the respondent was thus convicted.

From this judgment the present appeal was brought.

Sir H. Davey, Q.C., Dr. Tristram, Q.C., and Danckwerts, for the appellants.-All the acts and matters alleged and charged in the articles in this suit are contrary to the true intent and meaning of the Acts of Uniformity, and to the laws, constitutions, and canons ecclesiastical of the English Church. The matters charged have been admitted or proved. The respondent has been guilty of such acts and matters as constitute offences against the Acts of Uniformity and the laws, constitutions, and canons of the English Church. The acts and matters are prohibited by the statutes 2 & 3 Edw. 6. c. 1, 5 & 6 Edw. 6. c. 6, 1 Eliz. c. 2, and 13 & 14 Car. 2. c. 4, so far as the Acts are now in force. The acts and matters alleged and proved have been held to be offences against the laws, constitutions, and canons of the English Church by decisions and judgments of the ultimate Courts of appeal. [They referred to Westerton v. Liddell (1), Martin v. Mackonochie (2), Hebbert v. Purchas (3), Ridsdale v. Clifton (4), and of the Provincial Court of Canterbury in Hudson v. Tooth (5), Sumner v. Wix (6),

Read v. Bishop of Lincoln. and Elphinston v. Purchas (7).] The principles upon which the Archbishop has based his judgment are at variance with the principles laid down by the Judicial Committee of the Privy Council in advising her Majesty in previous ecclesiastical appeals. The construction put by the Archbishop upon the rubrics in the Book of Common Prayer is at variance with the construction already placed upon those rubrics by the Judicial Committee of the Privy Council in advising her Majesty in previous ecclesiastical appeals. The Archbishop had no power to review the decisions of the highest Courts of appeal, but was himself bound by the judgments of such Courts of appeal. The Archbishop has founded his judgment in respect of some of the acts and matters charged on authorities which are of no authority in such matters. He has consulted authorities as to the practice and usage of the primitive Church; but such references are of no authority-the question being, not what was the practice and usage before the Reformation times, but what was the practice and usage at the date of the present Prayer Book. Certain pictures and engravings have been constituted to be authorities because they were published with the sanction and authority of eminent Churchmen, such as Bishops Sparrow, Patrick, Sparke, and Burnet; but the fact that some of these Bishops entertained and sanctioned a particular view of the holy communion does not prove that such view was a correct view, and is not to the point. The pictures and engravings referred to prove too much or too little, and are mutually destructive of each other. Those which shew the eastern position do not shew the lighted candles; and those which shew the lighted candles do not shew the eastern position. The question to be determined is, What was the practice and usage of learned and eminent divines of the Church of England at the date when the present Prayer Book became the only authority on ritual in the English Church? The ancient liturgies referred to as authorities are no authority. Many of these liturgies were never printed

(7) 39 Law J. Rep. Ecc. 28; Law Rep. 3 A. & E. 66.

or even written, but were simply committed to memory, and are known not to have been composed by the persons to whom they have been attributed. The usage of the primitive Church in relation to the administration of the holy communion cannot add to or alter the Book of Common Prayer, nor can it be assumed that such usages are lawful where the rubric is silent. All that is not enjoined and directed by the Book of Common Prayer is forbidden, and the usage is unlawful. Upon the true construction of the Book of Common Prayer, the wine to be provided and brought into the Church for the purposes of the communion service is unmixed wine. If the Prayer Book directs the use of wine, it prohibits the use of wine mixed with water. There is no foundation for the doctrine or suggestion of the Archbishop that acts which may not be done lawfully during the communion service and in the church, may be done lawfully elsewhere and before the service, if they become or are operative during the service and in the church, or affect acts or things done or to be done as part of the service. Wine unmixed with water has been the universal usage in the Church of England since the Reformation. The ceremony of ablution performed by the respondent cannot be dissociated from the communion service, or the directions in the Book of Common Prayer in regard to the conclusion of the service. Such a ceremony was an unlawful addition to the service as directed by the rubric. What was done was a ceremony, and was illegal. The sacred vessels might have been, and ought to be, cleaned in the vestry or elsewhere after the congregation had left the church. Such a ceremony is not permitted by the rubric. It constituted an addition to the service, and is contrary to the usages and practices of the English Church. The Prayer Book directs that the priest, and such other of the communicants as he shall then call unto him, shall immediately after the blessing eat and drink the remains of the consecrated bread and wine. Besides, the

ceremony observed on the occasions alleged is calculated to inspire ideas which conflict with the reverence expressly enjoined by the rubric in the Book of Common Prayer,

Read v. Bishop of Lincoln. and savours rather of a superstition which is condemned by the Church in her Articles. With reference to the position of the officiating clergyman at the time of holy communion, the direction in the rubric in the Prayer Book is plain, “and the priest standing at the north side of the table shall say the Lord's Prayer and the collect." The direction must be construed with reference to the holy table standing either in the church or chancel, as it usually does, with the sides east and west and the ends north and south. The rubric must refer to that side of the table which faces towards the north according to the compass. The contention that the north side means the northern part of the side is not a natural construction of the rubric. That is the north side which is the north according to the compass. Sometimes the table is placed altarwise, and sometimes lengthwise. The position of the holy table is said to be in the discretion of the Ordinary; but this is not so. The case of the Church of St. Gregory by St. Paul's, in 1633, has been cited as an authority to the effect that the position is in the discretion of the Ordinary; but that case was decided by the Privy Council by the express order of the King, and was wrongly decided. With respect to the singing of the hymn known as Agnus Dei after the prayer of consecration, the singing of such hymn is an unlawful addition to the service, and is illegal. The use of such hymn is intended to inculcate the sacrificial view of holy communion. It indicates and teaches an adoration of the elements, and changes the character of the service of holy communion from a memorial to a sacrifice. The Book of Common Prayer contemplates and directs that the reception of the elements shall immediately follow the prayer of consecration without "let, break, or interruption"; and by such singing of a hymn at such a period of the service, there is caused a "letting" of the service, which is forbidden by the statute 2 & 3 Edw. 6. c. 1. s. 7. With respect to the burning on the communion table of the two candles when not required to give light, and in broad daylight, in connection with the communion service, such an act is an unlawful ceremony or rite, and is an

unauthorised addition to the rubric in the Book of Common Prayer as prescribed, and has been expressly held to be unlawful. The fact that the candles were lighted before the service commenced is immaterial. The Acts of Uniformity and the Book of Common Prayer must be interpreted to carry out their objectnamely, the performance of a common and known form of service in which all members of the Established Church of England can join or take part without injury to the feelings of any party in matters in which differences of opinion exist. The Archbishop's judgment is also defective, because the judgment expressly declares that the respondent has offended against the laws ecclesiastical in certain respects, but does not monish the respondent not to offend in like manner again. The appellants are entitled, upon a judgment which holds the party charged to have offended, to insist upon a monition. The appellants have endeavoured to promote the due observance of the laws ecclesiastical and obedience to the rubric in the Book of Common Prayer.

The following authorities were also referred to-Sheppard v. Bennett (8), The Injunctions of 1547; Card Doc. Annals, vol. 1. p. 4; Robertson on the Liturgy, p. 70; Neale's History of the Puritans, vol. 2. p. 9; Vox Borealis, 1641; Hierurgia Anglicana, 1660, p. 229; Lathbury's History of the Common Prayer, p. 427; Harsnett's Case, Cosin's Correspondence, Surtees Soc., vol. 52, p. 16; Sparrow's Rationale of the Book of Common Prayer, vol. 1. p. 161; Prynne's Canterburies Doome, Burbidge's Liturgies, 1885, pp. 196, 202; Lit. Moz., p. 219; Migne; Hammond, vol. 14. p. 205; Becon's Comparison, 1558, vol. 2. p. 359; Jewel's Sermons, Parker Society, Restell's Confutation of a Sermon by Jewel, 1565, p. 30; Fulke's Defence of the Translation of the Bible, 1583, Parker 1583, Parker Society, Rogers on the Thirty-nine Articles, 1596; Blakeney on the Book of Common Prayer; Stow's Annals, 1631, p. 608; Lord Selborne on the Liturgy of the English Church, p. 511; Wren's Parentalia, pp. 54, 75; Foxe's Book of Martyrs, bk. 9. vol. 2. p. 700;

(8) 39 Law J. Rep. P.C. 59, 68; Law Rep. 4 P.C. 51, 71.

Read v. Bishop of Lincoln. Shaw v. Wilson (9), Hutchins v. Denziloe (10), and to the following pictures and engravings: The Hollar Series, De Laune's Engravings of St. Paul's Cathedral, The Divine Banquet, Compton's Bonk, and to Gunton's Interior of Peterborough Cathedral.

The respondent did not appear.

THE LORD CHANCELLOR (LORD HALSBURY) delivered the judgment of their Lordships (11):

Before dealing with any of the specific charges which are the subject of the appeal, their Lordships think it right to notice an objection raised by counsel as to the legitimacy of some of the considerations by which the Archbishop was influenced in arriving at his conclusions.

It has been urged that upon such subjects as the practice of the primitive Church, the ritual of the Eastern and Western Churches, the position of the Lord's table, the position of the celebrant at the table, and like questions, which are ex hypothesi beyond the reach of living memory, the Archbishop has consulted ancient authors, historical and theological works, pictures, engravings, and a variety of documents, of which undoubtedly any careful and competent historian would avail himself, but which it is argued cannot legitimately be made use of in a Court of justice, and upon which it is said no Judge is justified in placing any reliance in forming his judg

ment.

Where the objection is of so general a character, it is impossible to do more than apply to it a general treatment.

The first observation that arises is, that if our law were to exclude all such historical investigation as is pointed to by the objection, and questions of ritual and ecclesiastical practice could only be investigated by the light of the words of an Act of Parliament some centuries old, and by the testimony of living witnesses,

(9) 9 Cl. & F. 355.

(10) 1 Hagg. Con. Rep. 170.

(11) The Lord Chancellor (Lord Halsbury), Lord Hobhouse, Lord Esher, Lord Herschell, Lord Hannen, Sir Richard Couch, and Lord Shand. Ecclesiastical Assessors: The Bishop of Chichester (Dr. Durnford), the Bishop of St. David's (Dr. W. B. Jones), and the Bishop of Lichfield (Dr. Maclagan).

it would disclose a very unreasonable and unsatisfactory state of the law.

Who can doubt that contemporaneous usage would be of incalculable value in forming a judgment on such subjects as are indicated above? And if no historical investigation can be permitted as to what was the contemporaneous usage, one source of light upon doubtful questions would be

excluded.

The novelty of the objection urged before this Board is not a conclusive consideration, since the fact that an objection has not previously been taken is by no means conclusive against its validity when actually taken; but their Lordships cannot fail to be struck by the absence of any such objection in, for example, Ridsdale v. Clifton (4), where, not by counsel only, but in the judgment ultimately pronounced, such authorities as Hooker, Baxter's Life and Times, Collier's Ecclesiastical History, Dr. Thomas Bennett's Paraphrase, Cosin's Works, and the like, were quoted and relied upon; and this not upon questions of doctrine or opinion, but as leading to inferences of fact of what was usual at the time of the writers referred to.

But their Lordships are of opinion that the objection is founded upon an erroneous view of the law. Where it is important to ascertain ancient facts of a public nature, the law does permit historical works to be referred to.

The House of Lords, upon the impeachment of Warren Hastings, having first determined that it would only proceed upon judicial evidence, such as would be receivable in a Court of law, received in evidence (being advised, it will be remembered, by the Judges) Cantemir's History of the Turkish Empire. In the case of St. Katharine's Hospital (12), Lord Hale admitted Speed's Chronicles to be evidence of a particular point of history in Edward III.'s time, and Chief Justice Pemberton received the same evidence to prove the death of Isabel, Queen Dowager of Edward II., and said he knew not what better proof could be given.

Without considering further how far an ecclesiastical Judge has a right to act upon

(12) 1 Vent. 157.