ARCHES.] MARTIN v. MACKONOCHIE. FLAMANK v. SIMPSON. [ARCHES. Coleridge, Q. C. and Dr. Swabey (Droop with them) | the Act mean nothing more than the essential followed on the same side, and refered to the following additional authorities: Prideaux, Q. C. (W. M. James, Q. C. (a), and Dr. Tristram with him), for defendants.-If this charge be sustainable at all, it must be under the second division in the penal clause in the Act of Uniformity (2 & 3 Edw. 6, c. 1.) The Act of Edward, sect. 2, contains a penal clause, the object of the first part of which is to require the use of the Prayer-book, that of the second part to prevent the use of any other service. This charge is not a charge against Mr. Mackonochie for having refused to use the Prayer-book; therefore, if Mr. Mackonochie has committed any offence at all, he has offended against the second penal provision of that clause, which is to this effect: "And albeit that the same be soe godlie and good that they give occasion to every honest and conformable man moste willinglie to embrace them, yet lest anye obstinate, who willinglie would disturb so godlie an order and quiett in this realme, should not go unpuny shed, that it maye also be ordeyned and enacted by the authorite aforesaid that if any manner of person, vicar, or other whatsoever minister that ought or should synge or saye Common Prayer mentioned in the saide booke." Now, to bring a clerk within this clause, it must be clearly shown that he persisted in acting wilfully and obstinately; and consequently, as Mr. Mackonochie has desisted from these practices as soon as he found that they were not approved of by Convocation, t ese proceedings cannot be sustained: Ridley's Injunctions, 1 Card. 92; Cawdray's case in King's Eccl. Law, 5 Coke. It is important here to call attention to the full title of the Prayer-book, which is the same both in the Acts of Edward and Elizabeth, "The Book of Common Prayer and Administration of the Sacraments and other Rites and Ceremonies of the Church after the Use of the Church of England." Now, the object of the Act of Elizabeth was not to establish Act of Parliament rites, was not to introduce any rite which is foreign to the one Catholic and Apostolic Church, but to provide a special and general use for celebrating in the Church of England the rites and ceremonies of the Church. The terms rites and ceremonies in (a) Mr. W. M. James, Q. C. (being unwell) opened the defence in an able speech, which dealt generally, but briefly, with all the questions at issue, assigning the details to be Maborated by his juniors. office which is celebrated; that is to say, in this particular case, the Eucharistic service, called in the Roman Church the Mass, in the English the office of the Holy Communion. But do the words rite or ceremony in the penal clause mean anything different? It has been contended that by the words rite or ceremony there are meant the individual pieces of ceremonial; but in the title to the Prayer-book, as well as in the penal clauses of the statute, they are clearly used not to indicate any special individual act of ceremonial, but refer to the service as a whole. In the rubric last but one in the first Prayer-book the word rites is clearly so used. Behrens' History of the Prayer-book 1840, p. 11; The Eucharist, by Bennett; Homily on Common Prayer and the Sacraments, Martin Bucer to the Ministers at Strasburgh; Forms of Baptism and Marriage Certificates. The rubric is not exhaustive as to mere ceremonial, and does allow the introduction of ceremonial acts into the rite, which are essentially parts of the rite, if they be not at variance with the ceremony, which the clerk is bound to perform. Now the rubric was passed at a time when the usages and practices of the Church were well known, and was passed with reference to the then state of the common ecclesiastical law, which it only alters, so far as it alters it at all, either by express terms, or by necessary implication; it does not, therefore, preclude such ceremonial acts as were in use in the Church of England at the time when the Act of Uniformity was passed, and which are consistent with the enactments of that statute, the Prayerbook was not intended to deal with ritual, but with the form and order of the services; that is to say, the language to be used, and the order of succession of the different parts. I call attention again to the language of the penal section of the Act; the words occur, "or shall use wilfully and obstinately standing in the same any other rite, ceremony, order, or form," and it is quite cer tain that unless it can be shown that the word "use" was intended to apply to ceremonial, the case of the other side is gone. Let us look at the fifth paragraph of the preface of the first book; the words there are, "And whereas heretofore there hath been a great diversity in saying and singing in churches within this realm, some following the Salisbury use, some the Hereford use," &c., it is clear from that preface that it treats the first Prayer-book as a method of providing that there should be one use of "saying and singing." The Prayer-book interleaved by the Rev. W. Campion, B.D. and the Rev. W. J. Beaumont, note by Bishop of Ely, p. 10. From this it appears that that which is the special essence of the use is not the ceremonial, which is a mere accident, but the form or order of saying the service. Ceremony in the penal clause I contend to mean service, and if individual acts of ceremonial were intended to be referred to express words would have been used. Ceremony as used in the existing Prayer-book, "Of ceremonies, why some be abolished and some be retained," refers to an extern ceremony-a ceremony complete in itself in a certain sense, but annexed to the services of the church, and not an essential part of them: Strype's Cranmer, 1-85. Bale's Image of both Churches, quoted by Strype, under date 1544. Now all the usages complained of were in force at the time of the Reformation by the common ecclesiastical law of England; and the question is, have ARCHES.] MARTIN v. MACKONOCHIE. FLAMANK v. SIMPSON. the Statutes of Uniformity taken away the right of following the common ecclesiastical law. The presumption is against it. An Act of Parliament is to be interpreted with reference to the common law, and only operates on the common law so far as it is repugnant to the statute: Duallis on Statutes, 518. This is analogous too to the interpretation of usages in the contracts of trade. Are any of the practices complained of forbidden expressly? That cannot be pretended; the other side do not pretend that the elevation is now forbidden by the rubric that did exist in the first Prayer-book of Edward. It is admitted that it is repealed, and it is argued that it was no longer necessary to have a prohibitory rubric in order to forbid it. Now, Mr. Coleridge assumed that because no manual acts are prescribed by the second Prayer-book, that no clergyman could legally perform them. This book was in force from 1552 to 1661. The second Act of Uniformity says that the second book has been made fully perfect, but it is too much to ask your Lordship to conclude, especially as an important ceremonial in the first Act has in the second been left out; therefore that the manual acts the putting the bread upon the altar, the taking the cup in hand, the breaking of the bread, were not to be performed. The acts of consecration, while the second book was in force, were borrowed from the first, otherwise no manual acts could have been performed; usage, too, as appears from Bishop Cosin, is against my learned friend. The consecration, no doubt, did take place, and where is there a record in all the Puritan literature, of a conviction for the performance of any act of consecration? for it cannot be doubted that many clergymen would not give it up. And then there were and are still in force the penalties attaching to the laity for attending services not in accordance with the Prayer-book. Again, if the construction relied on by the other side is correct, how can the existence of certain canons regulating certain acts in the performance of Divine service, be accounted for; such, for instance, as the 18th Canon directing the bowing at the name of the Redeemer, but my friend's argument is that an ancient custom of the Church goes for nothing unless re-enacted in the Act of Uniformity: Escot v. Mastin, Notes of Eccl. & Mar. Cases, 532; Burder v. Hale, Notes of Cases, 111. The canon by which a fair linen cloth is directed to be placed on the altar. The first Prayerbook says nothing about it; the second, which yielded so much to the prejudices of the Puritans, ordered it. Can there be a doubt it was used in the mean time? Now there is one practice almost universal-that is, the singing of the Gloria at the time of the Gospel. It is prescribed in the first Prayerbook, it is not in the second, and yet it is continued to be used. Now, there are several prohibitory rabrics which uselessly burden the Prayer-book if whatever is not expressly enjoined is forbidden. This difficulty is attempted to be got out of by a reference to the matins, "Then shall be said or sung without any invitatory, this psalm-Venite Exultemus," and my friend used it in this way: he says if a prohibitory rubric is necessary to forbid a thing, why say "without any invitatory." The answer is in the following, that that is rather a directory than a prohibitory rubric; but if you cannot go out of the four corners of the existing Prayer-book, what is the use of the ornaments rubric. The only cases which can be cited on these points are Rex. v. Sparkes, which is an express authority that if you say or sing the service according to the use of the Church of England you may say another prayer; there is also the case of Newberry v. Goodwin, 1 Phil. 282. Now that is no decision even that words, not to speak of gestures, may not be | [ARCHES. added. In the Westerton case the Privy Council refer to Faulkiner v. Lichfield, Moo. 186, but they did not mean to extend the principle so far as the mere words they use seem to warrant. This appears the more clearly by a reference to Dr. Lushington's remarks in the judgment in Faulkiner v. Lichfield, in the Westerton case, p. 30. It is necessary too to bear in mind the particular object of the Privy Council which was to let in the credence table, in support of the proposition that I have been laying down that the rubrics are not exhaustive: The Annotated Book of Common Prayer, p. 21; Report of Ritual Commissioners, p. 121, Letter of I now come to the question of lights. First, as to their symbolical meaning. It is said that they symbolise Popish superstition; this is not so in the Anglican branch of the Catholic Church; they signify that Christ is the true light of the world: in the Roman branch, substantially they signify the same thing, and in the Greek branch go further, and typify the incarnation of the Word of God, by which He gives light not only to men but to angels. I shall respectfully submit that upon two grounds the use of these candles is perfectly lawful. Now, my learned friend said, "I do not put it on ornaments;" that looks as if he felt that if I could prove they were ornaments, decision would be against him. These candles are either embellishments or ornaments; it is impossible to put a third construction on them. If they are embellishments, that is to say, if they are not used in any part of the ceremony of the Lord's Supper, how can the use of them be a violation of the penal clause. The distinction between embellishments and ornaments is this, the Judicial Committee say that whatever implement is used in the service is an ornament; if the candles are used as part of the ceremony they are ornaments; but if the candles are not used in the service they are a mere embellishment, and the ornaments rubric does not touch them. This was the ground on which the use of the cross was justified in the Privy Council. Now, my friend was right; the candles are not ornaments; they are embellishments; they are in the same category as the cross, and are not implements used in the service; and if so, whether, on a civil proceeding they might be removed or not, the defendant cannot be prosecuted in this way concerning them. The fact that they are lighted does not the less make them embellishments. Grant that the fact shows that they are symbolical, but so is the cross, so are the varied altar cloths, both held to be legal. The mere fact of lights being used at any service of the Church does not mean that they are part of the service that is being performed. It might as well be argued that if there be holly on the altar at Christmas, it is used in the administration of the services. When a marriage takes place the altar is often decorated: the same reasoning applies. Candles do not appear in the light of church ornaments in Lynwode, for the reason that they were only embellishments, and there can be no doubt they were burnt on the altar in Lynwode's time. If they are not ornaments, but merely illegal embellishments, the matter should be determined civilly, and not criminally. If they are embellishments, which may be lawful or not, then I say these are matters for the discretion of the bishop. The injunctions of 1547 had binding legal effect, as is decided in an elaborate judgment of Sir John Dodson. Now, the subsequent repeal of Parliament would not invalidate the injunctions previously issued under it. Upon the true construction of the judgment of the Privy Council in the Westerton case upon the ornaments rubric, what ARCHES.] MARTIN v. MACKONOCHIE. FLAMANK v. SIMPSON. ever was lawfully used under the first Prayer-book Letter by Martin Bucer and Paul Fagius to Maskell's Ancient Liturgies, preface, p. 1; p. 150; Eliza Shipton's case, Palmer's Reports, 296; Now, whatever is prescribed by the injunctions of Canons of Archbp. Reynolds, Lynwode, 248; The lights before the sacrament were not there sym- celebration. 1 Cranmer, p. 3; Perry on Kneeling, p. 20; Canon 42 of Edgar, anno 960, Johnson's Canons; 1 Card Doc. Annlas, 179. Under the first Prayer-book, as much of the sacrament as was not required for the sick, was consumed then and there (2nd Rubric of Communion of the sick.) The following authorities were also referred to Chambers on Lights, 36 and passim; Constitutions Robertson's How shall we Conform to the Church Strype's Ecclesiastical Memoirs, vol. 3, p. 22; I come to the question of incense. Now there can Dr. Littledale on Incense; document taken from Lord Lyttleton's M.SS., containing an account of expenses due from Bishop Cosin for candles and censors Pilkington's Works, Parker ed. 129. The evidence upon which the mixed chalice rests in the early Church is very strong. I do not contend that the use of the mixed chalice is at all necessary: [ARCHES. Bennett's Hist. of Eucharist, 17; Pamphlets by Dr. Littledale, and Mr. Gruber. Under the Sarum use, the Order of the Communion, and the first Prayer-book of Edward VI.-wine with a little pure water is to be put on the altar and consecrated, and the contents of the cup are afterwards called wine. Under these circumstance, in the absence of any rubric to the the contrary, the fair inference to be drawn is, that when they speak of consecrating the wine they are speaking of the same thing which was to be consecrated under former books, the legal presumption is in favour of this view, that the old state of things was to remain. If we were living under Edward's second Prayer-book, the necessity there would be of supplying the manifest deficiencies of the rubrical directions from the first, and if there is any deficiency in the present scanty rubric, we may also go back to Edward's first book to supply it: Perry's Lawful Church Ornaments, p. 457; Sacra Privata of Dr. Wilson, p. 53, Oxford ed., 105; 7 Collier's Eccl. Hist., 433; Ellsley's Annotations on the Gospels, vol. 1, 416420. I now come to the question of elevation. This is a which, if wrong at all, should be left to the dismere question of excess of action, and is a matter cretion of the bishop to be dealt with; but I submit that it is lawful. Now, what is forbidden by the rubrics is the turning round and elevating and showing the sacrament to the people. The real exPlanation of the words in the Order of the Communion is that the Divine mystery had already lifting up to God had already taken place. The been performed, the Divine action completed, the subsequent consecration was simply for the purpose of communion; and the Divine mystery having been already celebrated, that which was essentially a part of the Divine mystery, but which was perhaps not essentially a part for the mere purpose of communion, was directed to be omitted. I contend that the lifting up and elevating is recognised in the rubrics as part of the Divine action. There are two prohibitory rubrics, one being the Order of Communion, issued a year before the first Prayerbook. This forbids the lifting up in general terms, and its object is to forbid elevation where the object is communion. The object of the rubric in the Prayer-book is to prohibit the elevation to the people. This latter used to be practised in the Roman Church, and is still done by the Pope himself (Dublin Review, Oct. 1867) during the celebration, and is generally practised in that Church at the communion : It Injunctions of Edward VI., Card. Doc. Annals, 75, Parker's Letter to Cecil, Church Union case, 81; Burnet's Exposition of Twenty-eighth Article, Dr. Consecration Prayer in Greek Liturgy, Dr. Neale; is said that the elevation is contrary to the Traité de l'Exposition du Sainte Sacrament del Canons 6 and 7, Council of Trent, 13th sess.; Perry on Kneeling, 90; Cranmer's Remains, part 1, p. 431; and Original Letters, vol. 1, No. 14, p. 24, Parker ed.; With regard to the question of kneeling, it is only Homily on the Book of Common Prayer, Oxford necessary for me to call attention to this, that upon ed, 319; Liturgy, translated by Dr. Neale : the true construction of the rubric there is no more direction for the celebrant to kneel when he receives ARCHES.] MARTIN v. MACKONOCHIE. FLAMANK v. SIMPSON. the blessed communion than at any other time during the celebration of that rite. It is quite clear, if the rubric be carefully looked into, that the direction to kneel is limited to the people. I conclude my observations by reading an extract from the recent charge of the Lord Bishop of Salisbury, p. 62. [ARCHES. Dr. Tristram further contended, that as the foun-churches were instituted in a similar way in the dation of this prosecution was an alleged violation of the Act of Uniformity of Charles II., for which the defendant was liable under the statute either to be indicted in a criminal court or to be prosecuted in the Ecclesiastical Court, this court was not entitled to find him guilty of the offences charged unless it was satisfied that, upon indictment in a criminal court, he would, under the circumstances, have been found guilty. Also, that the injunctions of 1547, enjoining two lighted candles to be placed on the high altar, were issued under the Supremacy Act (26 Hen. 8, c. 1), which was still in force, and not under the Act of Proclamations (32 Hen. 8), there having been three injunctions issued prior to the passing of the last statute: (1 Strype's Memorials, part 2, p. 495.) Upon the authority of the English Canon Law, and whatever construction to be put upon the rubrics of the present Prayer-book taken in conjunction with the rubrics of the former Prayer-books, he cited Escott v. Mastin, 4 Moo. P. C. 123; Kemp v. Wickes, 3 Phill. 264. Stephens, Q. C., replied. March 28.-Sir R. PHILLIMORE delivered the following judgment.-This case of Martin v. Mackonochie was brought before my predecessor in this chair by letters of request from the Bishop of London, under the provisions of the 3 & 4 Vict. c. 86. That statute, passed in the year 1840, enables any bishop within the Province of Canterbury either to try the case of a clerk for a criminal offence before himself with certain assessors, or to send it to the Court of the Archbishop for trial in the first instance. Since the passing of this statute, bishops have very generally availed themselves of the latter provision, and this court has now before it several cases so sent from several suffragan dioceses of the Province of Canterbury. The letters of request were accepted by Dr. Lushington, and I was one of the counsel in the case for the accused clerk. When the archbishop was pleased to confer on me the judgeship of his court, I proposed to hear the case with assessors. To this the promoter demurred. I then appointed, as my patent gave me power, two surrogates. The counsel for Mr. Mackonochie applied to the Court of Queen's Bench for a rule nisi to show cause why the prohibition should not go to these surrogates, upon the ground that I had exceeded my power in appointing them. The promoter or accuser did not appear to show cause against the prohibition, and the rule, upon an ex parte statement, was perhaps almost necessarily made absolute. But I think if the rule had been opposed, and the powers given by my patent, and also the fact of the invariable usage of this court, as proved by its earliest records, to appoint surrogates, being duly brought to the attention of the Court of Queen's Bench, it would have refused the rule. I mention this circumstance in order to prevent any inconvenience which might ensue from its being supposed that this court had no power to appoint surrogates. There are two modes of procedure in the ecclesiastical courts-one of a civil, and the other of a criminal character. There had been, in recent times, two leading judgments delivered upon the lawfulness of certain ornaments (to which word a precise legal meaning has been attached) used during the celebration of divine worship, and certain decorations of churches. In both these judgments the questions for judicial decision were raised in the civil form of procedure. The Stone Altar Case (as it has been commonly called) arose on an application for a faculty in the consistory of Ely, and was brought on appeal to this court. The causes relating to the Knightsbridge consistory of London, from the decision of which court an appeal was prosecuted, first to the Court of Arches, and ultimately to the Judicial Committee of the Privy Council, which last tribunal recommended Her Majesty to reverse, upon many points, the decision of the courts below. As the archbishops and the bishops, who are Privy Councillors, are only members of the Judicial Committee in cases of criminal proceedings against clerks in holy orders, the prelates who did sit on this last occasion sat only as assessors and not as members of the court. The proceedings taken in this case are of a criminal character, and the sound of them, so to speak, is harsher than that of those in the cases to which I have referred, but substantially the same end is sought, and the same remedy pursued; and, with an exception to be hereafter stated, I am not prepared to say-inasmuch as not only certain ornaments, but also the use of them in the services of the church, are complained of-that it would have been competent to the promoters to have brought before me in a civil form all the matters contained in these criminal articles. They are comprised under the following heads: (1) The elevation of the blessed sacrament of the Lord's Supper, accompanied in Mr. Mackonochie's case by kneeling, or "excessive kneeling," at times not prescribed by the rubrics. (2) The use of incense during the celebration of the Eucharist. (3) The mixing of water with wine at the time of the administration of the Lord's Supper. (4) The use of lighted candles upon the holy table. It will be necessary presently to enter into a fuller and more detailed statement of each of these charges, and of the answers to them. I will only observe that, with one exception, to be noticed hereafter, there is no dispute in the case as to the facts to which the law is to be applied. The The law principally, though not exclusively, relied upon by the counsel for the promoter is contained in the Statutes of Uniformity. I must refer to these statutes. The first statute is that of 2 & 3 Edw. 6, c. 1, which accompanied the first Prayer-book. The second is that of 5 Edw. 6, c. 4, which accompanied the second Prayer-book, and has been repealed. The third is that of 1 Eliz. c. 2, the penal sections of which are in force. additions made to the Prayer-book by James I were not accompanied by a separate statute, but were made under the powers conferred upon the Crown acting with the metropolitans, under a clause of the statute of Elizabeth. Fourthly, the present Statute of Uniformity, the 13 & 14 of Car. 2, c. 4, which embodies so much of the stat. of 2 & 3 Edw. 6, c. 1, and of 1 Eliz. c. 2, as were necessary for "the establishing and confirming" of the new Prayer-book. It is necessary to refer somewhat at length to the statutes now in force. [His Lordship here read at length the 2 & 3 Edw. 6, c. ss. 1, 7, and 8; 13 & 14 Car. 2, c. 4, ss. 1, 2, 24, 17, and 1 Eliz. c. s. 27.] The main proposition upon which the alleged unlawfulness of all the matters contained in the criminal articles has been rested by the counsel for the promoter is, that they are all, in effect, rites and ceremonies other than and additional to those which are prescribed in the Prayer-book and the Act of Uniformity. The answer to this charge is twofold: first, it is averred that the matters com ARCHES.] MARTIN v. MACKONOCHIE. FLAMANK v. SIMPSON. [ARCHES. and ceremony seem to be used for elements or portions of a service. Let us consider the construction put upon the Latin terms (from which, of course, the English terms are borrowed), ritus et cæremonia by high Latin authorities. plained of are not rites or ceremonies; secondly, that if they fall within either category they are not "other than or additional to" those prescribed in the Book of Common Prayer, in the sense of being at variance with or repugnant to them, forasmuch as they are in accordance with and subsidiary to Bona (Opera Omnia, p. 562), writing, De Disthem. Under the first position they maintain that ciplina psallendi, s. 3, says: "Cæremoniæ quid the terms "rites and ceremonies" mean an entire sint, et quæ hujus nominis origo. Earum efficacia, service, such as masses for the dead, or services for et utilitas ad divinum cultum, Vera a falsis, et particular festivals; or customs such as creeping to superstitiosis discernendæ. Exteriores ceremonias the cross, and the like, which were abolished at the sine interno spiritu parum prodesse. time of the Reformation; that the elevation of the Sunt autem ceremoniæ, si propriè loqui velimus, blessed sacrament, excessive kneeling, the use of ritus sancti in sacrificiis, et divinis officiis ad Dei incense, the mixing water with the wine, the light-cultum adhibiti: sed migravit vocabulum in usus ing of candles, are elements or ingredients of a rite or ceremony, and not a rite or a ceremony per se. The terms rite and ceremony, as used in the first Prayer-book, and from thence imported into our present Prayer-book, are terms, so to speak, of ecclesiastical and ritual art, and must be construed with reference to their use in contemporaneous and other works of writers upon ritual, unless they receive a different meaning from a comparison of other passages or parts in the Prayer-book or statute in which they are found. I must, therefore, refer at length to the preface in our Prayer-book entitled, "Of rites and ceremonies." [His Lordship read the preface referred to in full.] Perhaps it would be difficult to deduce from this language any certain conclusion as to the precise sense in which the terms rites and ceremonies are used. In the first Prayer-book, at the close of the dissertation, which is at the end of the services, "Of ceremonies, why some be abolished and some retained," are "certain notes for the more explication and decent ministration of things contained in this book," one "note" is "as touching kneeling, crossing, holding up of the hands, knocking upon the breast, and other gestures, they may be used or left as every man's devotion serveth without blame." This note does not appear in the subsequent Prayer-books, but, nevertheless, at the Hamptoncourt conference in the year 1604, the Bishop of Winchester, replying to the objections made by the Puritans to the use of the cross in baptism and ceremonies generally, said,-"In prayer, the kneeling on the ground, the lifting up of our hands, the knocking of our breasts, are ceremonies significant: the first of our humility coming before the mighty God; the second of our confidence and hope; the other, of our sorrow and detestation of our sins; and these are and may be lawfully used." "Mr. Dean, of the chapel, remembered the practice of the Jews, who, under the institution of the Passover, prescribed unto them by Moses, had, as the rabbins witnesse, added both signs and words, eating soure herbs, and drinking wine, with these words to both, Take, and eat these in remembrance,' &c.; 'Drink this in remembrance,' &c. Upon which addition and tradition of theirs our Saviour instituted the sacrament of his last supper, in celebrating it with the same words and after the same manner; thereby approving that fact of theirs in particular, and generally, that a Church may institute and retain a sigue significant," which, says the reporter of the conference, satisfied his Majesty exceedingly well.-(Cardwell-Conferences on the Book of Common Prayer, p. 167). These gestures appear to me to have been considered as ceremonies wisely left to every man's discretion. etiam profanos; nam cum homines instituissent sibi invicem inclinare, genua flectere, manus osculari: hæ et aliæ honoris exhibitiones, cum proprio nomine carerent, cœptæ sunt etiam ceremonia dici." Van Espen (Jus Eccles. Universum, p. 410, t. v., cap. 1, de celebratione Missarum) speaking of the celebration of the Eucharist, says: "Certum tamen est ipsum apostolis suis, totique Ecclesiæ, in eorum persona, potestatem auctoritatemque dedisse ea omnia in augustissimi hujus mysterii ritibus seu cæremoniis addendi, demendi, immutandi quæ illius dignitati et populorum devotioni pro temporum et locorum diversitate magis congruere judicarent." Here, ritus and cæremonic are not separate services, but certain ingredients or accompaniments of one service, that of the Eucharist. Gavanto (vol. 1, p. 3, ed. 1823, Venice), a great Roman ritualist, says, that Bona and Suarez both define cæremonia as "actio religiosa ad cultum et decentiam sacrificii ab ecclesià instituta." And then he quotes Quarti's opinion (Gavanto Thesaurus Sacroram Rituum, vol. 1, p. 4, Pars I., in Rubricâ Generali). The Council of Trent, in the 22nd session, the 5th chapter, De Missæ Ceremoniis et Ritibus, speaks as follows:-"Quumque natura hominum ea sit, ut non facile queat sine adminiculis exterioribus ad rerum divinarum meditationem sustolli, propterea pia mater ecclesia ritus quosdam ut scilicet quædam submissa voce alia vero elatiore in missâ pronuncierentur, instituit, ceremonias item adhibuit; ut" (these are instances of ceremonies) "mysticas benedictiones, lumina, thymiamata, vestes, aliaque id genus multa ex apostolica disciplinâ et traditione, quo et majestas tanti sacrificii commenderetur, et mentes fidelium per hæc visibilia religionis et pietatis signa ad rerum altissimarum, quæ in hoc sacrificio latent, contemplationem excitarentur." Whatever authority this passage may have, it would appear to include under the title Ceremonice, among other things, the use of lights, incense, and of vestments. There is no doubt that the terms rites and ceremonies are sometimes used in the sense contended for by the defendants; but on the whole the result of this examination of authorities leads me to the conclusion that there is a legal distinction between a rite and a ceremony; the former consisting in service expressed in words, the latter in gestures or acts preceding, accompanying, or following the utterance of these words. Applying this principle to the charges before me, I am of opinion that the matters complained of must be considered in law as ceremonies. Before I proceed to consider the greater question, whether there are ceremonies forbidden by the In the first "order of the communion" which pre-ecclesiastical law of England, and more especially ceded the first Prayer-book, the rubric says, "the by that part of it which consists of the provisions time of the communion shall be immediately after of the Prayer-book and the Statute of Uniformity, that the priest himself hath received the sacrament, I think it right to draw attention to the judgment without the varying of any other rite or ceremony of the Church Universal, and especially of "that in the mass (until other order shall be provided), pure and apostolical branch of it established in but, as heretofore usually the priest has done with this realm," upon the general subject of ceremonies. the sacrament of the body, &c." Here, again, rite | And from that judgment it will, I think, appear that |