1869. MARTIN v. MACKONO- PART II. Cysts, proper and right to be done. They did not hear Mr. Stephens upon the question as to whether or not this Tribunal has the means of enforcing its orders. Happily it has been supplied (and I use the word 'happily,' because it would be in vain to establish a Tribunal which has no power to enforce its orders) with abundant means for that purpose by the Statutes which have been passed in that behalf; but into the examination of these means, and the different modes which might be adopted for that purpose, we are not, for the reason I am presently going to mention, about to enter. In declining to take any more severe step than that of compelling Mr. Mackonochie to pay the costs of this application, their Lordships have had to consider the affidavit which was last made by him, and to which they have been desirous to give the most favourable construction and allowance; and in that affidavit Mr. Mackonochie very properly says that he never intentionally or advisedly, in any respect, disobeyed the Monition, or sanctioned any practice contrary to its provisions. I confess I think, as I have already intimated, that Mr. Mackonochie takes an exceedingly narrow view of that which the word 'obedience' ordinarily implies, when he says that he has endeavoured to obey this Order; but he does say that which in a sense, for the purpose of clearing his contempt, he may have a right to claim the benefit of-that he never intentionally or advisedly, in any respect, disobeyed the Monition. He now, we hope, will learn that mere literal compliance in a merely evasive manner will not suffice. Literal compliance with regard to the actual limits of the Order is, of course, all that he is held to in Law; for an obedience to the spirit of the Order we can only trust to his own feelings and to his own conscience. And when he thus tells us that it has not been, and is not, his desire wilfully to disobey the Law, or to disregard its Monition, their Lordships think that they are bound, on this first occasion of the matter being brought before them of any non-compliance with the Order, to allow Mr. Mackonochie the benefit of that affidavit; and they do not think it necessary on the present occasion to do more, after expressing their opinion judicially that the Monition has been disobeyed with reference to kneeling during the Prayer of Consecration, than to mark their disapprobation of such a course of proceeding by directing that he shall pay the costs of the present application. Their Lordships make no further order. The following Monition was drawn up and issued in pursuance of their Lordships' judgment: 1869. MARTIN V. MACKONO- PART II. Judgment. "The Lords of the Committee, having heard Alexander Monition. Heriot Mackonochie, the Respondent, in person, and Counsel on behalf of the Appellant, pronounced that he, the said Alexander Heriot Mackonochie, had not obeyed the Monition which had been served upon him, and whereby he was, amongst other things, commanded to abstain for the future from kneeling before the Consecrated Elements during the Prayer of Consecration; monished him to abstain therefrom for the future; and condemned him in the costs of these proceedings.' In a Cause and Appeal from the Arches Court of Canterbury. Motion against the Respondent for disobedience to a Monition founded upon an Order in Council, which ordered him (amongst other things) to abstain for the future from the elevation of the Cup and Paten during the administration of the Holy Communion, and from kneeling and prostrating himself before the Consecrated Elements during the Prayer of Consecration; ' in that he knowingly and habitually sanctioned the elevation of the Cup and Paten above the head of the officiating Clergyman in the Prayer of Consecration, and knowingly and habitually sanctioned kneeling and prostration during the Prayer of Consecration. It appeared that the ordinary course pursued was for the officiating Clergyman, on reaching the words of institution in the Prayer of Consecration, to drop his voice so as to be nearly inaudible; that he then elevated (not the Paten) but a large wafer bread, and, replacing it upon the Communion Table, bowed his head down towards the Table, and remained some seconds in that position; that he then elevated the Cup so that the rim was some inches above his head, and, replacing it on the Table, bowed as before, after which the administration of the Elements commenced: Held, that such elevation of the wafer was equivalent to an elevation of the Paten, the elevation which is unlawful being that of the Consecrated Bread itself, and not the Paten * Present: The Lord Chancellor (Hatherley); the Archbishop of York (Dr. Thomson); and Lord Chelmsford. in which it is placed; that the bowing of the head in Nov. 1870. MARTIN THIS was a motion to enforce obedience to a Monition which had been served on the Respondent, admonishing 16, 18, 25, him (among other things) 'to abstain from the elevation of the Cup and Paten during the administration of the Holy Communion, and from kneeling and prostrating himself MACKONObefore the Consecrated Elements during the Prayer of Consecration.' Affidavits were filed to the effect that the Respondent had not complied with the Monition, and a motion was made to the Judicial Committee on December 2, 1869 (ante, p. 131), to enforce the Monition. On December 4 their Lordships pronounced, inter alia, 'that the Respondent had not obeyed the Monition which had been served upon him, and whereby he was (amongst other things) commanded to abstain for the future from kneeling before the Consecrated Elements during the Prayer of Consecration; monished him to abstain therefrom for the future ; and condemned him in the costs of the proceedings.' Notwithstanding these proceedings, the Respondent continued to disobey the Monition by knowingly and habitually sanctioning the elevation of the Paten and Cup above the head of the officiating Clergyman in the Prayer of Consecration during the administration of the Holy Communion, such elevation being then practised by his Curates and other Clerks in Holy Orders, when officiating and saying such Prayer in his stead and place, and in his presence, in the church of which he was Incumbent; and he also knowingly and habitually sanctioned kneeling or prostration before the Consecrated Elements during such Prayer by his Curates and other Clerks v. CHIE. PART III. Statement. 1870. MARTIN v. MACKONO- PART III. in Holy Orders, when so officiating and saying such Prayer. These violations of the Monition were deposed to by several witnesses, who, in their affidavits, described the course usually followed in the Respondent's church, which appeared to be for the principal officiating Clergyman, when he came to that part of the Office for the Administration of the Holy Communion where the Consecration Prayer is to be read, to lower his voice so as to become indistinct, and only audible as a kind of murmur by the greater part of the congregation; and that while he was thus indistinctly speaking and making a brief and momentary pause, a bell began to toll, and the following actions and circumstances took place:-The officiating Clergyman paused, and then bowed down over the Holy Table, and then knelt down with his hands resting thereon, and on rising elevated either the Paten or what appeared to be, and was, a large wafer-bread, about three inches above the level of his head; and, on replacing it on the Holy Table, again bowed and knelt down as before; and after a short interval he similarly raised the Chalice, or Cup, so that the rim thereof was about three inches above his head, and immediately after replacing the same on the Holy Table knelt down upon both knees, and bowed his head below the level of the top of the Holy Table, and on rising, after a short pause, proceeded with the administration of the Holy Communion. In consequence of such practices, notice of an application to enforce the observance of the Monition was served on the Respondent; and a case was lodged in the Council Office containing the particulars of the acts of disobedience to the Monition. This case, with the affidavits referred to, with notice of the intended motion thereon, was served on the Respondent, who did not appear; but after some delay he filed counteraffidavits, which in no respect contradicted, though they purported to explain, the practices deposed to and alleged against him. The Appellant filed a supplemental case with ailidavits in reply to those filed by the Respondent. |