"Scriptura Divina, mos populi Dei, vel instituta majorum pro "lege tenenda sunt." And St. Jerome, to whom our articles refer, says (b), "Sed ego St. Jerome. "illud breviter te admonendum puto traditiones ecclesiasticas, "[præsertim" (remark the caution) " quæ fidei non officiant] ita "observandas ut a majoribus traditæ sunt: nec aliorum con"suetudinem, aliorum contrario more subverti. 66 Sed unaquæque provincia abundet in sensu suo, et præcepta "majorum leges apostolicas arbitretur." When Augustine, the missionary of Gregory the Great (to Archbishop whom this country is so much indebted), found the ancient Augustine. British Churches in possession of a ritual in accordance with the Gallican use and that of the Eastern Church, he became perplexed what course to pursue, and wrote for advice on the subject to the pope. From our old historian Bede we learn how wise an answer he received (c) : 66 "Cum una sit fides," wrote Augustine, "sunt ecclesiarum "diversæ consuetudines, et altera consuetudo missarum in sanctâ "Romana ecclesia, atque altera in Galliarum tenetur? Respondit "Gregorius Papa. Novit fraternitas tua Romanæ ecclesiæ con"suetudinem, in qua se meminit nutritam. Sed mihi placet, "sive in Romanâ, sive in Galliarum, seu in qualibet ecclesiâ aliquid invenisti quod plus Omnipotenti Deo possit placere, "sollicite eligas, et in Anglorum ecclesia, quæ adhuc ad fidem "nova est, institutione præcipua, quæ de multis ecclesiis colligere potuisti, infundas. Non enim pro locis res, sed pro bonis "rebus loca amanda sunt. Ex singulis ergo quibusque ecclesiis, quæ pia, quæ religiosa, quæ recta sunt elige; et hæc, quasi in "fasciculum collecta, apud Anglorum mentes in consuetudinem "depone." 66 According to a later historian of our church, the learned Dean Field. Field, Dean of Gloucester: "Ceremonies are outward acts of religion, having institution, "either from the instinct of nature, as the lifting up of the "hands and eyes to heaven, the bowing of the knee, the striking "of the breast, and such like; or immediately from God, as the "Sacraments; or from the Church's prescription: and either "only serve to express such spiritual and heavenly affections, dispositions, motions, and desires as are or should be in men; "or else to signify, assure, and convey unto them such benefits "of saving grace as God in Christ is pleased to bestow on them. "To the former purpose and end the church hath power to "ordain ceremonies; to the later, God only" (d). 66 And Burnet in his History of the Reformation (e), expressing Bishop himself with greater accuracy than usual, in speaking of the Burnet. (b) Hieronymi, Opera, vol. i. p. 432; Ep. 71, ad Lucinium Bæticum. (c) Bede, Hist. lib. i. cap. 27, § 60, Secunda interrogatio Augus tini, ed. Stevenson, vol. i. P. 59. p. 527. (e) Part ii. Book i. ed. Pocock, vol. ii. p. 155. The Thirtynine Articles. Bishop the authority as to ritual. use of a ceremony in relation to the belief of the church, says, The language of our church in her articles on this subject is expressed as follows: In Article 20 "Of the Authority of the Church. "The Church hath power to decree Rites and Ceremonies, and "authority in controversies of faith: And yet it is not lawful "for the Church to ordain anything that is contrary to God's "Word written, neither may it so expound one place of "Scripture, that it be repugnant to another. Wherefore, although the Church be a witness and a keeper of holy Writ, "yet, as it ought not to decree anything against the same, so "besides the same ought it not to enforce anything to be "believed for necessity of salvation." 66 66 66 And in the 34th Article, "Of the Traditions of the Church. "It is not necessary that Traditions and Ceremonies be in all places one, or utterly like, for at all times they have been divers, and may be changed according to the diversities of "countries, times, and men's manners, so that nothing be "ordained against God's Word. Whosoever through his private judgment, willingly and purposely, doth openly break the "traditions and ceremonies of the church, which be not repug"nant to the word of God, and be ordained and approved by common authority, ought to be rebuked openly (that others "may fear to do the like), as he that offendeth against the "common order of the Church, and hurteth the authority of "the Magistrate, and woundeth the consciences of the weak "brethren. "Every particular or national Church hath authority to "ordain, change, and abolish ceremonies or rites of the Church "ordained only by man's authority, so that all things be done "to edifying. I should observe that the general canon law unquestionably placed in the hands of the bishop the authority to govern all questions of ritual. "Et quidem," Van Espen says "quia dispares diversarum "Nationum mores et ingenia diversos ritus et cæremonias, ut in politicis ita in ecclesiasticis exigunt, hinc in ritibus magna "Ecclesiarum varietas; præsertim quia nullo extante de his "Christi vel Apostolorum præcepto, libera potestas Episcopis "relicta erat, id sentiendi et decernendi quod unicuique salvâ "fide magis expediens videbatur." And citing the decree of a synod he says: "Novæ cære"moniæ nullæ in Ecclesiis recipiantur sine Episcopi judicio" (f). Such being the general law of the Western Church as to Law of the matters of ritual, we have now to consider the law of the Church Church of England. of England on this subject. No argument of the continuity of the Church of England, Structure of from the period of its first foundation in this country to the Prayer Book. present time, can be stronger than that which is derived from the structure, order, and contents of the Prayer Book. It contains the Breviarium, in which towards the end of the 11th century had been inserted all the offices of the canonical hours, called also Portiforium and in England Portuary, the Missale or the service for the holy communion, and the Ordinale, which is referred to under the name of the "Pie" in the preface. There were various "Uses" or Prayer Books in England, known as the Salisbury, the York, the Bangor, and the Hereford Uses, and others. The most celebrated appear to have been the Portiforium or Breviary of Sarum, which contained the daily services, the Sarum Missal, which contained the holy communion service,-and the Sarum Manual, a book of occasional offices. These books of devotion seem to have been compiled by Osmund, Bishop of Salisbury, about the time of the Conquest; and in 1531 a reformed edition of the Sarum Portiforium was reprinted, and shortly afterwards a reformed missal was published. There were also Primers, which contained, in a vulgar tongue, large portions of the service in use amongst the people. In 1536 the Roman Breviary was reformed, and published by a Spanish Bishop, Cardinal Quignonez; and in 1544 Hermann, Archbishop of Cologne, whom the Pope during the early sittings of the Council of Trent deprived (g), published a reformed ritual (h). In 1542 Henry VIII. directed Convocation to consider the revision of the books of devotion then in use in this country. It is probable that the fruit of their labours, as well as the other works to which reference has been made, were laid before the royal visitors appointed by Edward VI. in January 1546-47, and the Committee of Convocation, to whom the preparation of the Prayer Book of 1549 was intrusted. The whole Prayer Book in fact, with very inconsiderable Distinction and Cere exceptions, consists of a translation of the ancient liturgies, and especially of the liturgy used by the Western Church. And we learn from the preface to the Prayer Book that the object was to restore that "godly and decent order of the ancient fathers" which had been broken, and to introduce an order of prayer and reading of Holy Scripture "agreeable to their mind and purpose;" and that all suggested alterations which "secretly struck at some laudable practice of the whole Catholic Church of Christ" were rejected; and that the calendar contained a "table of feasts, vigils, fasts, and days of abstinence," which were in accordance with primitive and catholic use; while the ornaments of the church and the vestments of the ministers were such as to present to the people some of the most prominent features of the ancient service, and were for this reason the ground of unceasing attack from the Puritans, and the disciples of the Genevan school. And it is the observation of Mr. Hallam, while speaking of the Roman Catholics, that it was "always "held out by our Church, when the object was conciliation, that "the liturgy was essentially the same with the mass-book” (i). In the case of Martin v. Mackonochie (first suit) (k) the quesbetween Rites tion was much discussed in the Court of Arches whether the terms Rite and Ceremony were identical in their legal import and signification. monies. In his judgment in that case, Sir Robert Phillimore referred to and quoted the Preface to the present Prayer Book; the note on ceremonies at the close of the dissertation at the end of the services; the language of the Bishop of Winchester at the Hampton Court Conference in 1603 (7); Van Espen (m); the Roman Ritualists Gavanto and Quarti (n), and the Council of Trent (0). On the whole the result of this examination of authorities led him to the conclusion that there was a legal distinction between a rite and a ceremony; the former consisting in services expressed in words, the latter in gestures or acts preceding, accompanying, or following, the utterance of these words, and including the use of lights, incense and vestments. Legal sources of ritual in England. SECT. 2.-Sources of the Law of the English Church as to Ritual. The ritual of the Church of England, both as relates to the ornaments of the church and the dresses and posture of the (i) Constitutional History, vol. i. p. 92. (k) L. R., 2 Adm. & Eccl. p. 116. (1) Cardwell, Conferences (3rd ed.), p. 197. (m) Van Espen, Jus Ecclesiasti cum Universum, pt. 2, sect. 1, tit. 5, cap. 1, § 9. (n) Gavanto, Thesaurus Sacrorum Rituum, pt. 1, tit. 1, vol. i. p. 3 (ed. 1823). (0) Conc. Trid. Sess. xxii., cap. v. minister, are derived from the following sources: custom and usage, canons of the church, and statutes of the realm. The proposition that in case of conflict the latter source was the one recognized by the law, used to be deemed a sound legal position. It has, however, apparently been somewhat impaired by the decision of the Privy Council in the case of Hebbert v. Purchas (p), and perhaps also by the decision of the same tribunal in Ridsdale v. Clifton (q), in which it would seem that the positive words of the statute or rubric of Charles the Second were controlled and limited in their plain meaning by the language of the canons of 1603. With respect to the more stringent categories of rubrics, Construction namely, those which relate to things lawful and ordered, and of rubrics generally. things unlawful and prohibited, there is a question in limine which must be considered. Is there a common law of the church unwritten, living by usage, though partly expressed, perhaps, by judicial decisions; but still more, to use a common expression, taken for granted by all authorities in church and state-filling up the void of positive provision in statute or formulary-a necessary part of an organized religious system and establishment, rendering the practical working of it possible, and, on the whole, harmonious? construction. In the case of Martin v. Mackonochie (r), Sir Robert Philli- Usage as more held as follows:-"That there has been such a usage in affecting the church at large, from its earliest foundation, is certain. 'We know no such customs, neither we nor the churches of "God,' was the language which we learn from inspired authority she used as her shield against the earliest assaults upon her integrity. Let the ancient customs prevail' was the maxim, fatal to the medieval and modern pretensions of Rome, which the Church enunciated in her earliest oecumenical council. canon law of the Western Church fully recognizes custom and usages as a distinct source of ecclesiastical jurisprudence. Was the branch of this church, which the constitution and the legislature have established in this kingdom, devoid of this subsidiary aid to her discipline and government?" The Sir Robert Phillimore then quoted the case of Willson v. Common law McMath (8), where a very curious question was raised, whether of the Church. the minister, as such, has a right to preside at a vestry meeting, and in which Sir John Nicholl, the official principal of the Archbishop of Canterbury, observed: "The case is said to be a new one, so far as regards any express law, or any judicial decision on the subject. There is no statute, no canon, no reported judgment, either expressly affirming or expressly negativing the right. It nevertheless may exist as a part of the common law of the land, as a part of the lex non scripta, (p) L. R., 3 P. C. p. 605. (q) 2 P. D. p. 276. L. R., 2 Adm. & Eccl. 116, and Special Report. The passages which follow were not affected by |