in a parish church is one of the only valid ways of contracting it, if the clergyman were capriciously to refuse, parties may be prevented acquiring civil rights; yet it does not follow, that a clergyman who refuses without just excuse is liable to an action at the suit of either party. And it has never been decided that either an action or an indictment will lie against a clergyman for refusing to marry two persons, though they have given due notice.2 Moreover, those who feel aggrieved can always resort to a marriage in a registrar's office.

4

3

Uniformity in ceremonies of public worship.-For many ages, and so long as the leading men of the Church filled all the important offices of the State, it was natural and inevitable, that one mode of worship should become more or less settled; for as yet there were no Puritans or Nonconformists who had the courage to withstand the legislature and think for themselves both as to the authority of the laws of the Church and those of the State. All laws were once treated as of divine origin, and therefore it was deemed impious to change or even to murmur against them. And those laws relating to the Church, as already stated, were deemed the most divine of the divine. The canon law may be said to have been common to all European countries during the middle ages, but that share of it which had force in England was confined mainly to such doctrines as had been developed in our national and provincial synods, and not merely promulgated and adopted by the clergy, but absorbed into the common law and enforced and acted on by the courts. The canon law per se was of no account unless and until that absorption took place, and much of our early common law, such for example as related to tithes and advowsons, and priests, extracted from that source came to be treated as if it had been declared in solemn form by the legislature. The statute of Henry VIII. did not in strictness incorporate the existing canons and constitutions

1 Davis v Black, 1 Q. B. 900. 2 R. v James, 2 Den. C. C. 1. 3 1 Pat. Com. (Pers.) 108.

4 It is said Cecrops first regulated public worship for the Athenians, and fixed the ceremonies.-Pausan. b. viii. c. 2. LUTHER observed, that the ceremonies of worship were useful for the impression they left on gross and uncultivated minds.-2 Steph. Eccl. Biog. 467.

until they should be revised-for that was an event which never happened. That statute merely left the canon law as it was before. And hence it is still law, that no canons passed by convocation can be binding if not ratified and incorporated by the legislature, which is the only recognised medium through which new laws can bind us. Up to the time of Henry VIII. and Charles II., it might have been very uncertain how many parts and maxims of the canon law had been then incorporated and enforced by the common law; but since their time the statutes must be consulted as the only source of all the new positive law which can bind both laity and clergy.

Mode of worship fixed by statute.-At the Reformation it appears that the bishop of each diocese altered the liturgy at pleasure, till Edward VI. caused the best forms to be studied, and a systematic collection called the First Prayer Book to be compiled; and then it was passed by Convocation and by Parliament. Then a second Book of Common Prayer and a second Act of Uniformity followed. Elizabeth's Parliament passed a third Act of Uniformity, and again that of James I. had also a like Act: and finally that of Charles II. passed the Act of Uniformity now in force.2 In modern times no further changes have been made, for the difficulty of effecting them has been felt and acknowledged.3 Yet it has been allowed, that though the canons which have been passed could not bind the laity, they might bind the clergy, a consequence which flows from the oath of canonical obedience.4 Much that relates to the ceremonial and ritual observances of public worship is especially vague and indeterminate, and this arises from the circumstance that the statutes and injunctions flowing therefrom soon after the Reformation, instead of methodising and clearly expressing what was to be deemed legal or illegal thenceforth, resorted to the expedient of assuming that everybody knew what was the usual and current practice then deemed correct. This mode of defining the law by reference to the then current usage has had the consequence of increasing the difficulties of posterity, for it has obliged the

1 25 Hen. VIII. c. 19. 2 14 Ch. II. c. 4. 3 151 Parl. Deb. (3), 482, 1664.

4 Crofts Middleton, 2 Atk. 650; 2 Str. 1056; Bp. Exeter v Marshall, L. R., 3 H. L. 17, ante, p. 384.

courts, after the lapse of three centuries, to search out the law relating to ordinary matters, as antiquaries do by collecting the loose allusions of contemporary writers on miscellaneous topics, instead of seeking after expositions of principles in systematic discussions by experts, and by judges trained to speak and think correctly.

Sources of the law as to public worship.—Thus when the Reformation opened the eyes of men to the abuses which attended many current rites and ceremonies, it was all but inevitable that some minuteness should be observed as the only effectual mode of correcting what was so conspicuously liable to be misused. The First and Second Prayer Books of Edward VI., that of Elizabeth, and the Act of Uniformity, all dealt with this subject. The Act of Uniformity, instead of carefully redefining and giving an inventory of the minutiae of orderly observances, resorted to the expedient of describing all things to be legal which were in use by authority of Parliament in the second year of Edward VI., and our modern disputes have ail involved a research into what was known and used in that remote age. The chief sources of the law regulating the liturgy of the Church of England are thus found in the reigns of Edward VI., Elizabeth, and Charles II. In 1547, the first year of Edward VI., his council issued certain injunctions which purported to be authorised by a statute of Henry VIII.,2 though some have thought these issued by virtue of the inherent right of supremacy attaching to the crown; and a committee of bishops and divines in 1549 prepared an order for the Communion, and finally the First Prayer Book of Edward VI. was settled and ordered by statute in 1549 to be alone used. An addition to this Prayer Book was sanctioned by statute in 1550. Objections, however, having been made to this Prayer Book as savouring too much of Romanish notions, a second Prayer Book was ordered and completed about 1551, and sanctioned by statute in 1552, to be used in lieu of the first book; and in the same year several other statutes were passed which dealt with various ecclesiastical matters. The Act of Uniformity of Elizabeth afterwards sanctioned a new 2 31 Hen. VIII. c. 8. 3 Westerton Ed. VI. c. 12, § 2; 1 Eliz. c. 2, § 27. 5 5 & 6 Ed. VI. c. 1.

3

1 1 Eliz. c. 2, $ 25. Liddell, Moore, Sp. R.; 1 4 2 & 3 Ed. VI. c. 1.

edition of the Prayer Book in 1559.1 In 1661 a Royal Commission having revised the Book of Common Prayer, another statute of Charles II. sanctioned in the following year the Prayer Book which is now in use. By this statute all ministers were declared bound to use the copy of the Common Prayer thereby referred to, afterwards known as the Sealed Books, and of which many inaccurate copies were put in circulation.3 This form of Common Prayer continued in force till 1879, when a few alterations were introduced by a modern statute.1

Details of public worship, how settled.-The genera' guide as to the conduct of public worship is now, therefore, the Prayer Book of Charles II., which prescribes various details.5 Little is left to the discretion of the minister, whose individual tastes cannot be allowed to prevail; indeed, he commits an ecclesiastical offence by deviating into irregularities. The limited discretion allowed is confined to things comparatively immaterial, the chief matter left to him being whether there should be singing or choral service, or none, and as to this it appears the minister may elect, or at all events he may do so with the consent of the bishop. An incumbent who resides on his benefice

1 1 Eliz. c. 2, § 3. But there is some doubt whether an authentic copy of this edition can be identified.-Clay's Lit. of Eliz. (Park. Soc.)

2 13 & 14 Ch. II. c. 4. 3 Stephens, B. of Com. Pr. 4 34 & 35 Vic. c. 37; 35 & 36 Vic. c. 35. 5 Martin Mackonochie, L. R., 2 Priv. C. 365. 6 Newbery v Goodwin, 1 Phillim. 282. 7 Hutchins Denziloe, 1 Hagg. Cons. 170. An ecclesiastical judge remarked on this part of the law: "The law directs, that a clergyman is not to diminish in any respect or to add to the prescribed form of worship; nothing is left to the discretion or fancy of the individual. If every minister were to alter, omit, or add, according to his own taste, this uniformity would soon be destroyed, and though the alteration might begin with little things, yet it would soon extend itself to more important changes in the established worship of the Established Church. And even in the Scriptures themselves the most important passages might be materially altered under the notion of giving a more correct version, or omitted altogether as unauthorised interpolations."-Sir J. Nichol, Newbery Goodwin, 1 Phill. 282. "The establishment is a tax laid by the sovereign authority for payment of those who teach and preach and practice a certain system of religious doctrines. For no legislature was ever so absurd as to tax its people to support men for teaching and acting as they please, but

and has a curate, is bound once a month to read the common prayer and service under a penalty of 51.1 And if a minister of the Church of England refuse to use the common prayer at the time appointed, or use any other rite, or preach in derogation of it, he commits an indictable offence punishable with a certain imprisonment and forfeiture of the profits of the benefice.2

Prayers for the Emperor were a feature of all early Christian services. The Scotch ministers, both of the Established Church of Scotland, and of the body known as the Episcopal Communion in Scotland, were by the Scotch Toleration Act made liable to a penalty of 207. if they did not during divine service pray in express words for Queen Anne and Princess Sophia while living, and "all the royal family."5 This penalty was repeated in 1792 as regards the Episcopal Communion in Scotland, and extended to "His Majesty and his heirs and successors;" but the Established Church of Scotland was thenceforth omitted."

Leading ceremonies in public worship.-The variations made by the clergy in the ceremonies attending public worship have given rise in recent years to much by some prescribed rule. The articles of religion and liturgy are not without the marks and characters of human frailty."-Burke, Sp. Unif. And though every one can point out obvious errors and defects in the liturgy, yet all seem to think that an attempt to re-write it would only lead to further dissensions.-158 Parl. Deb. (3) 880.

SWIFT, in the Examiner, said the name of High Church and Low Church began to be used soon after the Revolution.

1 14 Ch. II. c. 4, § 5; Newbery v Goodwin, 1 Phill. 282. 2 2 & 3 Ed. VI. c. 1, § 2; 1 Eliz. c. 2, § 2. But the offence must be prosecuted at the next assizes and not later.-Ibid. And this may be punished alternatively, though not cumulatively, as an ecclesiastical offence. Express power was given by statute in 1871 to vary the tables of lessons and psalter contained in the Prayer Book.-34 & 35 Vic. c. 37. Express power was reserved to "lawful authority" to change the names of the royal family in the prayers, litanies, and collects relating to them.-14 Ch. II. c. 4, § 21.

3 Tertull. Apol. c. 30. 4 10 Anne, c. 10 (1711). 5 10 Anne,

c. 7, § 13.

6 32 Geo. III. c. 63, § 5. The Crown exercised the power by proclamation to alter forms of prayer for special occasions without consulting Convocation. Thus when Parliament ordered the day of the Gunpowder Plot and the death of Charles I. to be observed, the forms were settled by Royal Proclamation, though Convocation had preferred other forms.-151 Parl. Deb. (3) 482, 1664.