THE OPINIONS OF NINE COUNSEL
that the Eucharistic Vestments are Lawful.
Furnished to the English Church Union in 1866, and Referred to in the Recent Correspondence between The Lord Chief Baron Kelly, and The Lord Chancellor Cairns, on the Decision of the Judicial Committee in the Case of Ridsdale v. Clifton and Others. London: English Church Union Office, 85, Wellington-Street, Strand, W.C. 1877. transcribed by the Revd Donne E Puckle, SSC
LEGALITY OF THE EUCHARISTIC VESTMENTS.
The Case upon which the following LEGAL OPINIONS were furnished to the English Church Union was prepared (June, 1866) in reference to a Case and Opinion adverse to the Lawfulness of the Vestments (and some other matters), then recently Published.* [*"The Ornaments of the Minister.--Case submitted to Counsel on behalf of several Archbishops and Bishops of the United Church of England and Ireland; together with the joint Opinion thereon of the Attorney-General, Sir Hugh M. Cairns, Q.C., Mr. Mellish, Q.C., Mr. Barrow. "Gillett J. Ottoway, Solicitor, 39, Essex-street, Strand. RIVINGTON, London, Oxford, and Cambridge. 1866."] Full materials were laid before Counsel by the Union as to the Vestments (also on other points upon which they were consulted), and their attention was particularly drawn to THE ADVERTISEMENTS, alleged in the previous Case to be the "other order" of the Elizabethan Act of Uniformity.
The E.C.U. Case concluded by asking the Opinion of Counsel in the following terms:--
"Having regard, therefore, to the preceding statements; and especially to the language of the Judicial Committee, in Liddell v. Westerton, that the Ornament Clause in the Act of Uniformity of 1559 and the successive forms of the Rubric on Ornaments in the Prayer Books of 1559, 1604, and 1662, 'all obviously mean the same thing, that the same Dresses and the same Utensils, or Articles, which were used under the First Prayer Book of Edward the Sixth may still be used;' and also giving careful attention to the Ancient Canons of the Church of England, which have been held in Court, and elsewhere, to be still Law by 1 Eliz. c. I, except where they have been expressly repealed--
"Your Opinion, as full and as definite as possible, is therefore requested upon the legality or otherwise of using the Articles or Practices mentioned under the following heads, viz.:--
"1. The Vestments prescribed in the First Prayer Book of Edward VI., for use by the Minister in celebrating the Holy Communion--namely, 'A white Alb plain, with a Vestment [i.e., Chasuble] or Cope.' The assisting Ministers also wearing 'Albs with Tunicles.'"
"In asking this Opinion it is desired to call the attention of Counsel to the fact there is no wish to urge, much less force, upon unwilling Clergy or People obedience to a Rubric which for a very long period has been neglected, or to imply unfaithfulness on the part of those who do not follow its directions. The object is simply to ascertain what liberty it concedes to those Clergy who desire to conform to it by employing the Ornaments and Usages which were, it is believed, 'used under the First Prayer Book of Edward VI.;' and who wish to avail themselves of such liberty in the mode of conducting Divine Service as (being not contrary to Law, or to that interpretation of the Rubric, above quoted* [see above--"all obviously mean," &c.] as given in 1857 by the ultimate Court of Appeal in Causes Ecclesiastical), is found to be the most edifying to their people.
"June 21, 1866."
We are of the opinion that the Vestments mentioned in the First Prayer Book of Edward VI., namely, "a white albe plain, with a vestment or cope," may lawfully be used by the Minister in celebrating the Holy Communion, and that the assisting Ministers may also wear "albes with tunicles."
We think that the language of the Rubric, "that such Ornaments of the Church and of the Ministers thereof.........shall be retained, and be in use, as were in the Church of England by the authority of Parliament, in the Second Year of the reign of King Edward the Sixth," adopted as they are from the 1 Eliz., c.2, s. 25, must be construed in the sense in which they were used in that statute, and that they must therefore be taken to authorize the use of, at least, those articles which were prescribed in the First Prayer Book of Edward VI.
We think that the interpretation we have put upon the Rubric is confirmed by the authority of the judgment of the Privy Council in Liddell v. Westerton.*
*"The Rubric to the Prayer Book of Jan. 16, 1604, adopts the language of the Rubric of Elizabeth. 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 utensil or articles which were used under the First Prayer Book of Edward VI. may still be used." --Liddell v. Westerton, Moore's P. C. Report, p. 159.
ROBERT PHILLIMORE [Now Judge of the High Court of Admiralty].
JAMES HANNEN [Now President of the Probate, Divorce, and Admiralty Division].
July 13th, 1866.
I have no hesitation in declaring my concurrence in the answer of the Queen's Advocate to the 1st question proposed (the question relating to Vestments), having expressed my opinion to that effect at the consultation held on the 25th of June last.
FITZROY KELLY [Now Lord Chief Baron].
Temple, July 14th, 1866.
The words of the Rubric in the First Prayer Book of Edward VI., that "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 the further direction in the same Rubric, that the "Priests or Deacons" helping "shall have upon them likewise the vestures appointed for their ministry, that is to say, Albes with Tunicles," describe the Ornaments of the Ministers at the specified times of their ministration. These Ornaments "were in this Church of England by the authority of Parliament, in the second year of the reign of King Edward VI.;" as such they are, in my opinion, now legal under the Prayer Book of 1662.
J. PARKER DEANE [Now Vicar-General of the Province of Canterbury, and Chancellor of Salisbury].
August 20th, 1866.
On the 1st question [that relating to the Vestments] I agree with the Queen's Advocate and Mr. Hannen.
C. G. PRIDEAUX, Q.C. [Now Recorder of Helston].
September 7th, 1866.
I am of the opinion that the use of Vestments is clearly legal.
I have read the Case printed as a Case submitted on the part of the "several Archbishops and Bishops" to Counsel, and the Opinion of Counsel thereon, and, with the most unfeigned respect for the Counsel whose names appear as subscribing the Opinion, I am really unable to bring my mind to entertain a doubt upon the subject.
I could easily understand the Case and the reasons for the Opinion if the question were the converse of that which is the actual question to be determined, viz., if the question were whether any proceedings could be successfully taken against Clergymen not using the Ornaments which "were in this Church of England, by the Authority of Parliament, in the second year of the reign of King Edward Vi." But the disuse which may be suggested as an excuse in a penal proceeding for not strictly following a prescribed rule because it has become obsolete, does not seem to me to afford the slightest ground for imputing illegality to those who obey the very letter of the rule, and decline to avail themselves of such excuse.
To say, as appears to me to have been said, that the words "shall be retained, and be in use" did, in the Rubric at the time when the Rubric was made, mean--"There is only to be a retainer of things which being prescribed have since been and continue to be in use at this day, and that the use of things then prescribed and now fallen into disuse is forbidden"--seems to me to be a most unnatural interpretation, and the most violent implication.
If they did not at the time mean so, of course no subsequent desuetude can make obedience to the prescribed rule now illegal. But if at the time they meant so, it certainly is a most singular form of expression, not used by ignorant men, not used by a parliamentum idoctum, but used by learned theologians--men acquainted with and fully alive to all the controversies which had in the interval disturbed the country and a large part of Christendom on this very subject.
I am satisfied that the Privy Council did not take any such view, and that the effect and plain language of their decision in Westerton's case was--that everything as to the Ornaments of the Church and of the Ministers which was lawful in the second year of Edward the Sixth, has continued to be and is lawful to this day. On the opposite construction I am unable to conceive why there should have been any reference to that year of Edward the Sixth at all.
W. M. JAMES [Now Lord Justice of Appeal].
Lincoln's Inn, Nov. 10th, 1866
We are of the opinion that the Vestments prescribed in the First Prayer Book of Edward Vi. for the use of the Minister and those who assist him in celebrating the Holy Communion may now be lawfully used.
WM. BOVILL [Late Lord Chief Justice of the Common Pleas].
J. D. COLERIDGE [Now Lord Chief Justice of the Common Pleas].
Temple, Nov. 17th, 1866.
The complete Case and the Opinions thereon (entitled "Disputed Ritual Ornaments and Usages"), from which these Opinions are extracted, is now out of print. It was published in 1866 by Messrs. Rivington, and was given entire in the First Report of the Royal Commission on Ritual, 1867. The republication of the foregoing Opinions as to the Vestments may be both interesting and useful in the present time, and they are accordingly submitted to the public.
ENGLISH CHURCH UNION OFFICE,