Malcolm MacColl.

The Royal commission and the Ornaments rubric online

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Examined in the Light of History and Law.

LONGMANS. GREEN, & CO., 39 Paternoster Row, London,
New York, and Bombay










All rights reserved



Reason why this book was written Unconscious bias of some
of the Commissioners Sir George Cornewall Lewis on the
influence of unconscious bias Unconscious bias of judges
attested by great legal authorities John Stuart Mill on
unconscious bias Unconscious bias in the Gorham and other
Judgments delivered by the Judicial Committee Judgments
of policy Blunders committed by the Judicial Committee
Eminence in one branch of law does not prove a judge
competent in other branches Study of the Common Law
may disqualify a man for adjudicating in Ecclesiastical cases
The principles and doctrines of these two branches of the
law mutually antagonistic Ecclesiastical Law is based on
authority and tradition ; the Common Law on positive
enactments to express national sentiment from time to time
The former governed questions of Doctrine and Ritual in
England till 1832-1833, when it was superseded by the
Judicial Committee The Judicial Committee is now ' only a
consultative body,' and ' has no jurisdiction,' yet claims to
be a Final Court of Appeal It suppresses differences of
opinion among the judges, and violates a fundamental prin-
ciple of British Justice Burke, Lord Brougham, and the
late Chief Baron Fitzroy Kelly quoted against the practice of
the Judicial Committee Dr. Stubbs and Mr. Gladstone on
the Judicial Committee The pledge given in 24 Henry VIII.
e. 12 must be redeemed Difference between the King in
Council and the King in Chancery Doctrine of Lord Coke
and of Queen Elizabeth Not the ability or the integrity of
the judges, but their knowledge, is in question Disuse of
Eucharistic Vestments no proof of their illegality Recom-
mendations of the Royal Commission of 1689 Macaulay on
those recommendations and on the policy of the Churches of
Rome and England respectively towards religious movements
Persecution of the Tractarians a warning and a lesson




Equal justice must be ineted out to all parties Best remedy
for present disorders Ritualism and Secularism Mr. W. R.
Greg on the working classes and the Ritualists The three
parties in the Church check each other beneficially Passion
for Uniformity mischievous Not Popery, but irreligion, is the
danger of the day Predestined mission of the Church of
England xiii-cx


Queen Elizabeth's Religious Belief and Policy on her Accession, as
intimated to the Spanish Ambassador Sir Lewis Dibdin and
Dr. Gibson discredit the story 1-5


The Augsburg Confession and Henry VIII. The Augsburg Con-
fession on the Mass and Auricular Confession Proposed
Agreement on Religion between Anglicans and Lutherans
Death arrested Henry VIII.'s Reformation Policy Henry
VIII. requested Cranmer to pen a Form to turn the Mass into
a Communion The Order of the Communion was the Result
Facts thus confirm the accuracy of Elizabeth's reported
Conversation with the Spanish Ambassador .... 6-14


A great part of Divine Service was in English at the death of
Henry VIII. There was a process going on for some years
previously of translating various portions of the Latin Services
into English The Epistles and Gospels were read in English
from the year 1537 Examples of various Editions Occa-
sional Services in English in Henry VIII.'s Reign The
Primers explained The Breviary of the Laity Henry VIII.'s
Last Primer Froude and Dixon on the Primer . . 15-37


The Order of the Communion and the Book of Common Prayer
were drafted in Henry VIII.'s Reign -The Book of 1549 was
but the filling in of the Outline This was the Result of a


long Process Examples given Statutory authority of Picked
Committees for ordaining Rites and Ceremonies by 32
Henry VIII. c. 26 38-47


Main lines of the Reformation laid in Henry VIII.'s Reign
Erroneous views on this subject The Church took the lead hi
repudiating Papal Supremacy Examples given No new
Formulary of Doctrine issued in Edward VI.'s Reign . 48-57


Religious Policy of Edward VI. and Elizabeth compared
Cranmer opposed to Edward's Second Prayer-Book The
Constitutional Reformers alienated by the Revolutionary
Policy of the Puritans Elizabeth's disapproval of the Policy
of the Puritans Elizabeth's own feelings and Religious
Policy 58-66


Elizabeth's Political Necessities coincided with her Religious
Convictions Numerical Proportion of Religious Parties in
1559 The Problem which Elizabeth had to face on her
Accession She steered a Middle Course 67-73


Meaning of ' by Authority of Parliament in the Second Year of
the Reign of King Edward VI.* Judicial Decisions That of
Sir John Dodson as Dean of the Arches in the case of Wester-
ton v. Liddell Decision of the Judicial Committee of the
Privy Council in the same case Those Judgments criticised
and shown to rest on Historical Errors The Entry in King
Edward VI.'s Journal Two Interpretations of the Ornaments
Rubric and the Ornaments Clause in Elizabeth's Act of
Uniformity Meaning of ' made ' as applied to Acts of Parlia-
ment The Ornaments Rubric and the Act refer to the usage
of Edward's Second year Historical examples in proof of
this . 74-95




The Latin Act of Uniformity Its bearing on the meaning of the
Ornaments Rubric Dr. Gibson's reasons for considering the
Appeal to the Latin Act of Uniformity irrelevant, examined
Proof that the Latin Act of Uniformity was contem-
poraneous with the Latin Prayer-Book of 1560, and also
authorised The Latin Prayer- Book proves that ' the second
year ' in the Ornaments Rubric refers to the legal usage of
that year, and therefore not to any usage prescribed by the
Act of Uniformity of 1549 96-110


The Royal Assent to the first Prayer-Book impossible in the
second Regnal year of Edward VI. Evidence adduced
to prove this Arguments to the contrary of Sir Edward
Clarke, Sir Lewis Dibdin, and other Commissioners examined
seriatim Was a specific date fixed for the coming into force
of the Act of Uniformity of 1549 ? Did that Act, ipso facto,
release the prisoners mentioned in its Preamble ? Argument
from statutes being in the form of Petitions examined The
General Pardon Act proves that the Act of Uniformity re-
ceived the Royal Assent on March 14, in the third year of
Edward's reign The burden of proof is on those who deny
this 111-129


To what does ' by authority of Parliament ' in the Ornaments
Rubric refer? The Author's view criticised by Sir Lewis
Dibdin, Sir Edward Clarke, and Dr. Gibson Authors
appealed to by Author Dr. Gee on Sandys's assertion that
the Ornaments Rubric authorised the ornaments which were
used in the first and second year of King Edward Bearing of
26 Henry VIII. c. 1 on the Ornaments Rubric Further,
82 Henry VIII. c. 26 gave statutory authority to the Order
of the Communion The contention that this Act was
repealed by 1 Edward VI. c. 12, as maintained by Sir Lewis
Dibdin and Sir Edward Clarke, would play havoc with
English History The contention examined in detail, and
authorities quoted to the contrary The success of the
Author's argument would not, as suggested by Sir Lewis
Dibdin, supersede the necessity of Acts of Uniformity
Sandys on ' First and Second Year ' of Edward VI. . 130-159




The Prayer-Book of 1549 no exhaustive Directory of Public
Worship Authorities quoted The Puritans Unpopular in
1549 Use of first Prayer-Book never Universal Question of
Kneeling at reception of Holy Communion raised by Knox as
King's Chaplain Cranmer on Puritan objections to the first
Prayer-Book Second Prayer-Book of doubtful authority
Used very partially Primary Cause of the Reformation
Authorities quoted in proof Elizabeth's own account . 160-176


Dr. Gibson on the last year of Henry VIII. and the first and
second years of Edward VI. Religious changes in 1547-9
Appeal to Facts The Ritual usage sanctioned in Edward VI.'s
second year Chantries in 1547-1548 . . . 177-182


Cosin and other Commentators on the Ornaments Rubric
Cosin confuses the second and third years of Edward's reign,
mistaking 1549 for the second year, and thus misleading
subsequent writers Cosin understands the second year to
cover the usage of that year Reconciliation of Cosin's
apparent discrepancies with the exception of his mistaking
1549 for the second year Another contemporary writer
makes the same mistake . . 183-191


The Advertisements did not repeal the Ornaments Rubric
Indirect Repeal Explained Case of Mastin \. Escott upsets
Purchas and Ridsdale Judgments Liturgical Ignorance of
the Judicial Committee illustrated Courts should not con-
strue against the Statute The Advertisements had no
Statutory force They were aimed at the Puritans alone
Evidence of Puritan Leaders and Impartial Historians The
Queen's own Testimony She explains the intention of the
Advertisements The Advertisements had only Episcopal
Authority The Argument summed up Why the Queen re-
fused her formal sanction to the Advertisements The Legal
Status of the Advertisements irrelevant to the Argument, and



why Bishops Home and Grindal on the Advertisements
The Advertisements avowedly directed against the Puritans
Legal Status of the Advertisements repudiated by the House
of Lords in 1641 192228


Dr. Gee's Theory based on two documents The ' Device ' and
Guest's Letter Summary of the ' Device 'Probably
inspired by Cecil A third Document also inspired by Cecil
Cross Currents in the Eevision of 1559 Dr. Gee's View
tested by the Declarations of Elizabeth and by the Attitude of
Puritan Leaders The Puritans antagonistic to Elizabeth's
Policy Cecil's Wishes and Guest's Letter Guest's Letter
quoted Cecil and Guest's Letter Dr. Gee's Argument
examined Internal Evidence against Dr. Gee's Theory
The Author's Explanation of the Revision of 1559 . . 229-266


Elizabeth's Conversation with Count De Feria, the Spanish
Ambassador State of Religion at the Death of Henry VIII.
Divine Service partly in English in Henry VIII.'s reign
The Ornaments Rubric and the Order of the Communion
The Order of the Communion had Statutory Authority
Authority cited Was 82 Henry VIII. c. 26 repealed by
1 Edward VI. c. 12 ? Import of 25 Henry VIII. c. 19
It was confirmed by 35 Henry VIII. c. 19 Dilemma as to
' Second Year ' Parliamentary Use of ' Made ' Meaning of
the ' Second Year ' Does it refer to the Usage of that year ?
Or to Parliamentary Authority given in that year ? Appeal
to alleged precedents None of the cases relevant. Onger
and Greensteed Statute not a case of usus loquendi Had
first Act of Uniformity a special date for coming into force ?
De Feria and De la Cuadra Elizabeth and the Confession
of Augsburg Guest's Letter and Strype's Suggestion Dr.
Gee on Guest's Letter Judicial Decisions and the Ornaments
Rubric Letter of Sandys Meaning of First and Second
Year Cosin on the Usage of the Second Year Sir Edward
Clarke on the Ornaments Rubric and on the Assent to a Bill



by Royal Commission ending the Session Sir Edward Clarke
on the Disuse of the Eucharistic Vestments Elizabeth's
intention in 1559 Date of the Act of Uniformity of 1549
Edward VI. 's Journal Mr. Drury on Ceremonies Latin Act
of Uniformity Cosin on the Ornaments Bubric Primers
used in Public Services Elizabeth and Henry VIII.
Elizabeth and Mary Disappearance of Vestments The
Cope obligatory, yet disappeared Withdrawal of an admission
General and Specific Repeals of Acts of Parliament . 269-372

1 Edward VI. c. 12 quoted 373-375



Page 195, headline : for Martin read Mastin

Pages, 341, 342, 344, headlines : for Date of her Act of Uniformity read
Date of the Act of Uniformity


THE Eoyal Commission on Ecclesiastical Discipline
did me the honour of inviting me to give evidence
as to the meaning, in my opinion, of ' the second
year ' in the Ornaments Rubric and in the Eliza-
bethan Act of Uniformity which ratified it. On
my accepting the invitation I was asked to send
the Commissioners a summary of the points on
which my opinion was based, which of course I did.
Meanwhile a copy of my book on the Reformation
Settlement was supplied to each of the Commis-
sioners without my knowledge, and T thus found
myself unexpectedly cross-examined on various
points in a book which I had not read for five years.
My examination, or rather cross-examination,
lasted five days, and I had to come up in mid-
winter from various parts of Yorkshire where I had
promised to help some of the clergy. My books,
moreover, were packed up, preparatory to removal
to a new home. I was thus unable to make any
preparation for each day's examination, even if I
knew, which I did not, the questions which were
to be put to me. On two evenings only I had time


to consult books in a club library, and verify my
recollections. Under pressure of cross-examina-
tion from able and learned men like Sir Lewis
Dibdin, Sir Edward Clarke, and Dr. Gibson (now
Bishop of Gloucester), I was induced to make
confessions of error, which I found afterwards, on
examination of the facts, were not errors at all.
In vindication of my own accuracy, therefore,
but chiefly in the interest of justice and of histo-
rical truth, I made up my mind to criticise my
critics and support with facts and arguments every
assertion which my examiners had impugned. On
intimating my intention to the Chairman (now
Lord St. Aldwyn), he made no objection, but
begged me to conform to the rule laid down by the
Commission, namely, that none of the witnesses
should publish anything on the subject till the
Commission had presented its Eeport. I readily
agreed to this, and the following pages accord-
ingly will not be published before the Report of
the Commission has been formally presented. The
Chairman courteously allowed me to possess a
copy of the official report of my examination, and
I give it in full in the Appendix, so that the reader
may be able to judge for himself how far I have
been successful in vindicating my accuracy against
its impugners.

I am sure that the Commissioners intended to
be perfectly fair. But those of them a small
minority who took the leading part in my ex-


As the author's reference to some of his examiners on
p. xv has been misunderstood by one of his reviewers, he
wishes to say emphatically that he was treated by all the
commissioners with great courtesy and consideration. All
he meant, as he goes on to explain, was that one or two of
his examiners seemed to him occasionally not to give its
proper weight to one class of evidence which he placed
before them ; and this he attributed to unconscious bias
due to imperfect acquaintance with some of the facts or to
an imperfect knowledge of the canons which govern the
interpretation of ecclesiastical law.


amination seemed to me to forget the purpose for
which they were appointed, which was to inquire
impartially into facts and present a report based
upon those facts. I was there by invitation of the
Commission to give such information as I might
possess on a disputed point in ecclesiastical
history. I held no brief for any person or party,
and I told the Commission what I believed to be
true, quite regardless of any private opinions or
predilections of my own. If I were an Agnostic
in matters of religion I should have given precisely
the same evidence, for truth and justice are in-
dependent of personal opinions and beliefs. Yet
I found myself cross-examined by some of the
Commissioners as if the Commission were a judicial
tribunal and I a hostile witness in a criminal
prosecution. They seemed to me less intent on
getting at the plain facts and forming an indepen-
dent judgment on them than on finding evidence
in support of a foregone conclusion. 1 The reader,
however, has the means of judging for himself in
the short-hand report of my examination, which
he will find in the Appendix. The great difficulty
in matters of controversy and perhaps in religious
controversy more than in any other is to exclude
unconscious bias and secure what Sir George
Cornewall Lewis calls ' the requisite indifference ' ;
by which he means indifference to all considera-

1 I except from this criticism the Primate, the Bishop of Oxford,
Sir John Kennaway, Mr. Talbot, Mr. Prothero, and Lord St. Aldwyn.



tions except truth and justice. The passage is worth
quoting :

It is universally admitted that no man ought to be
a judge in his own case. But, if the case were not his
own, his competency to form a judgment upon it might
be indisputable. So if any political measure be proposed
which affects the interest of a profession it may happen
that persons belonging to that profession, though pecu-
liarly competent to form an opinion respecting it, on
account of their experience and knowledge, are disqualified
on account of the probable bias of their judgment by per-
sonal considerations ; and that the requisite indifference
is only to be found among those who do not belong to
the profession. Such outlying persons may be the only
impartial judges in the matter. . . . The operation of
a personal interest in perverting the judgment is so
insidious, that great honesty, combined with perpetual
vigilance, is necessary in order to guard against its in-
fluence. Men utterly incapable of telling a deliberate
untruth, or deliberately expressing an insincere opinion,
are nevertheless liable to be warped by personal interest
in the deliberate formation of opinions. When a strong
bias of this sort exists, their minds, ready to receive every
tittle of evidence on one side of a question, are utterly
impervious to arguments on the other. Hence we see
opinions, founded on a belief (and often a radically erro-
neous belief) of self-interest, pervade whole classes of
persons. Frequently the great majority of a profession,
or trade, or other body, adopt some opinion in which
they have, or think they have, a common interest,
and urge it with almost unanimous vehemence against
the public advantage. On occasions of this kind, the
persons interested doubtless convince themselves of the
reasonableness of the view which they put forward ; they
are guilty of no hypocrisy or insincerity ; but their judg-


ment is warped by their belief as to their interest in the
question. 1

But the bias of self-interest is not always by
any means the most powerful bias. Many a man
who would instantly repel the promptings of self-
interest is easily influenced by loyalty to a great
cause, or institution, or political party. The
Judicial Bench is in this country proverbially free
from the temptation of perverting justice through
self-interest. But is it equally free from perverting
justice through the subtle influence of uncon-
scious bias ? Have not judges been accused even
in our own time of yielding to this temptation ?
Let me give some examples. Lord Selborne, when
he sat in the House of Commons in 1868 as Sir
Eoundell Palmer, offered a strenuous opposition to
the transference of election petitions from the
House of Commons to the judges on the ground
of what he thought the inevitable political bias of
the judges. These are his words :

Judges, like other men, have their politics, but at
present cases in which political bias might be supposed to
affect their minds were rare, although in these cases they
frequently gave their judgments according to their politics. 2

And is it not true that no general election has
passed since then without accusations of partisan-

1 The Influence of Authority in Matters of Opinion, p. 34.
1 Hansard, third series, cxii. 286-7.

a 2


ship against some of the judges' decisions in
election petitions ?

When the Supreme Court of Judicature Act
was before the House of Commons, and it was
proposed by the Government to give discretionary
power to the judges in the matter of assessing costs
and in a few other particulars, the Bar flew to
arms in dismay, and proclaimed its profound
distrust of the impartiality of our judges in cases
where their political sentiments were likely to be
strongly engaged. Let the following extracts from
the speeches of two distinguished members of
the House of Commons, afterwards elevated to the
judicial bench, suffice by way of example. Mr.
Lopes said : 1

When the proper time came he should move an
amendment that the bill of exceptions should be pre-
served. Again, under the Act of 1873 and this Bill, if
a judge misdirected a jury, or improperly received or
rejected evidence, a new trial was not to be granted unless
the Court before whom the case came should be of opinion
that the miscarriage of justice was caused by the mis-
direction unless the jury had been affected by it.
Judges were so apt to think they were right when
they were wrong that this would be a very dangerous
inroad indeed. Hitherto, save in a few very excep-
tional cases, costs always followed the event, and in
no case was the successful party deprived of his costs ;
but the Bill proposed to give a judge absolute discretion,
so that a judge who disapproved a verdict might order
a successful defendant to bear the costs of an action.

1 See Times of July 6, 1875.


Mr. Watkin Williams used even stronger lan-
guage, as the following extract from his speech
will show :

These Eules and Orders would be made by the judges
and would come into operation, and then in the month of
March or next Easter the House might interfere. But
suppose the judges abolished meanwhile trial by jury.
The Lord Chancellor might order cases to be tried by
a judge instead of before a jury, and when the matter
came to be discussed in Parliament all manner of proceed-
ings would be taken under these Eules and Orders, and
they would be told that the greatest inconvenience would
be caused by the House repealing them. He trusted that
the House would never part with this power. It might
be said that the judges would never do these things.
Wouldn't they? The first thing done by these Eules
and Orders was to abolish the bill of exceptions which
had been granted to suitors by Edward I., to prevent
caprice and the exercise of what was called ' discretion '
on the part of the judges. The bill of exceptions was
one of the rights of the suitor. The judges ought to
administer the law, and ought not to have the ' discretion '
which would enable them to alter it. Another exceptional
feature in the Eules and Orders was the power given to
the Common Law judge over costs. The power of giving
costs would be in the discretion of the judges, and it
would totally alter the relations between the judges and
the Bar. It was right that in Equity cases the judge
should have the power of deciding as to the payment of
costs, because he has the whole case before him. But
imagine a case of libel, or of interference with personal
liberty, which would come before a jury. If the judge
took a view opposed to that of the jury, he might avenge
himself and it was necessary to speak out on this sub-
ject by punishing the counsel, the suitor, and the jury,


because he differed with them in opinion. At present, if
a judge manifested caprice or lost his temper during a trial,
the counsel bore it patiently because they knew that the
judge was subject to the laws. If he was wrong in his
ruling they tendered a bill of exceptions : and if he over-
rode counsel they had the jury to appeal to. The Eules
and Orders would alter all this, and produce changes
such as no one at present realised.

Mr. Justice Neville, whose appointment to the
judicial bench has been hailed with satisfaction by
the Bar and Press, said in the course of a speech

Online LibraryMalcolm MacCollThe Royal commission and the Ornaments rubric → online text (page 1 of 38)