limits of whose province or diocese respectively any benefice respectively exempt or peculiar shall be locally situate, shall exercise all the powers of this act therein as if it were not exempt or peculiar, but was subject in all respects to the jurisdiction of such archbishop or bishop; and where any such benefice is locally situate within the limits of more than one province or diocese, or between the limits of the two provinces, or of two or more such dioceses, the archbishop or bishop of the cathedral church, to whose province or diocese the parish church is locally nearest, shall have and use all the powers necessary for due execution of this act, and enforcing it with regard thereto respectively as he could have used if the same were not exempt, &c.; and the same for all purposes of this act shall be deemed within the limits of such province or diocese, provided that peculiars belonging to any archbishopric or bishopric, though locally situate in another diocese (2), shall continue subject to the person to whom they belong as well for the purposes of this act as for all others of ecclesiastical jurisdiction. And by § 74. in every case where jurisdiction is given to the bishop of the diocese, or to any archbishop under this act, all other and concurrent jurisdiction in respect thereof shall cease, except such jurisdiction given under this act.]

Penance.

mutation in

1. PENANCE is an ecclesiastical punishment, used in the Of penance discipline of the church, which doth affect the body of and comthe penitent; by which he is obliged to give a public satisfaction general. to the church, for the scandal he hath given by his evil example. So in the primitive times, they were to give testimonies of their reformation, before they were readmitted to partake of the mysteries of the church. In the case of incest, or incontinency, the sinner is usually injoined to do a public penance in the cathedral or parish church, or public market, barelegged and bareheaded in a white sheet, and to make an open confession of his crime in a prescribed form of words; which is augmented or moderated according to the quality of the fault, and the discretion of the judge. So in smaller faults and scandals, a public satisfaction or penance, as the judge shall decree, is to be made before the minister, churchwardens, or some of the parishioners, respect being

(2) A license of non-residence on a benefice within an archbishop's peculiar, locally situate in another diocese, needs not to be registered in the registry of the diocese, but ought to be registered in the diocese of the archbishop. Wynne v. Moore, 5 Taunt. 757.

Penance of

divers kinds.

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had to the quality of the offence, and circumstances of the fact; as in the case of defamation, or laying violent hands on a minister, or the like. God. Append. 18.

And as these censures may be moderated by the judge's discretion, according to the nature of the offence; so also they may be totally altered by a commutation of penance: and this hath been the ancient privilege of the ecclesiastical judge, to admit that an oblation of a sum of money for pious uses shall be accepted in satisfaction of public penance. Id. 19.

But penance must be first injoined, before there can be a commutation; or otherwise it is a commutation for nothing. God. 89. 2. Lindwood and other canonists mention three sorts of pe

nance:

(1) Private; injoined by any priest in hearing confessions. (2) Public; injoined by the priest for any notorious crime, either with or without the bishop's license according to the custom of the country.

(3) Solemn penance; concerning which it is ordained by a constitution of archbishop Peccham, as followeth: Whereas, according to the sacred canons, greater sins, such as incest and the like, which by their scandal raise a clamour in the whole city, are to be chastised with solemn penance; yet such penance seemeth to be buried in oblivion by the negligence of some, and the boldness of such criminals is thereby increased; we do ordain, that such solemn penance be for the future imposed, according to the canonical sanctions. Lindw. 339.

And this penance could be injoined by the bishop only; and did continue for two, three, or more years. But in latter ages, for how many years soever this penance was inflicted, it was performed in Lent only. At the beginning of every Lent, during these years, the offender was formally turned out of the church; the first year, by the bishop; the following year by the bishop, or priest. On every Maundy Thursday, the offender was reconciled and absolved, and received the sacrament on Easter day, and on any other day till Low Sunday: This was done either by the bishop or priest. But the last final reconciliation, or absolution could be passed regularly by none but the bishop. And it is observable, that even down to Lindwood's time, there was a notion prevailed, that this solemn penance could be done but once: If any man relapsed after such penance, he was to be thrust into a monastery, or was not owned by the church; or however ought not to be owned according to the strictness of the canon: though there is reason to apprehend, that it was often otherwise in fact. And indeed this solemn penance was so rare in those days, that all which hath been said on this subject was rather theory than practice, except perhaps in case of heresy. Johns. Pecch.

3. Boniface. We do ordain, that laymen shall be compelled By canon. by the sentence of excommunication to submit to canonical penances, as well corporal as pecuniary, inflicted on them by their prelates. And they who hinder the same from being performed, shall be coerced by the sentences of interdict and excommunication. And if distresses shall be made on the prelates upon this account, the distrainers shall be proceeded against by the like penalties. Lindw. 321.

Which corporal penances Lindwood specifieth in divers in- [79] stances; as thrusting them into a monastery, branding, fustigation, imprisonment. Lindw. 321.

Othob. We do decree, that the archdeacons for any mortal and notorious crime, or from whence scandal may arise, shall not take money for the same of the offenders, but shall inflict upon them condign punishment. Athon. 125.

Stratford. Because the offender hath no dread of his fault, when money buys off the punishment: and the archdeacons, and their officials, and some that are their superiors, when their subjects of the clergy or laity commit relapses into adultery, fornication, or other notorious excesses, do for the sake of money remit that corporal penance, which should be inflicted for a terror to others; and they who receive the money apply it to the use of themselves, and not of the poor, or to pious uses; which is the occasion of grievous scandal, and ill example: Therefore we do ordain, that no money be in any wise received for notorious sin, in case the offender hath relapsed more than twice; on pain of restoring double of what shall have been so received within one month after the receipt thereof, to be applied to the fabric of the cathedral church; and of suspension ab officio, which they who receive the same, and do not restore double thereof within one month as aforesaid, shall ipso facto incur. And in commutations of corporal penances for money (which we forbid to be made without great and urgent cause), the ordinaries of the places shall use so much moderation, as not to lay such grievous and excessive public corporal penances on offenders, as indirectly to force them to redeem the same with a large sum of money. But such commutations, when they shall hereafter be thought fit to be made, shall be so modest, that the receiver be not thought rapacious, nor the payer too much aggrieved; under the penalties before mentioned. Lindw. 323.

4. By the statute of Circumspecte agatis, 13 Ed. 1. st. 4. The By statute. king to his judges sendeth greeting: Use yourselves circumspectly concerning the bishops and their clergy, not punishing them if they hold plea in court christian of such things as be mere spiritual, that is, to wit, of penance injoined by prelates for deadly sin, as fornication, adultery, and such like; for the which sometimes corporal penance, and sometimes pecuniary is in

Disposal of the commutation mo

ney.

[81]

joined (n) in which cases the spiritual judge shall have power to take knowledge, notwithstanding the king's prohibition.

By the statute of Articuli cleri, 9 Ed. 2. st. 1. c. 2. If a prelate injoin a penance pecuniary to a man for his offence, and it be demanded; the king's prohibition shall hold place: But if prelates injoin a penance corporal, and they which be so punished will redeem upon their own accord such penances by money; if money be demanded before a spiritual judge, the king's prohibition shall hold no place.

And by the same statute, c. 3. If any lay violent hands on a clerk, the amends for the peace broken shall be before the king, and for the excommunication before a prelate, that corporal penance may be injoined; which if the offender will redeem of his own good will, by giving money to the prelate, or to the party grieved, it shall be required before the prelate, and the king's prohibition shall not lie.

Before the prelate] It seems to be agreed by the canonists, that archdeacons may not inflict pecuniary penalties, unless warranted by prescription. Gibs. 1046.

5. Dr. Ayliffe says, that anciently the commutation money was to be applied to the use of the church, as fines in cases of civil punishment are converted to the use of the public. Ayl. Par. 413.

By several of the canons made in the time of queen Elizabeth, and in the year 1640, it was to be applied to pious and charitable uses; and the Reformatio legum directed, that it should be to the use of the poor of the parish where the offence was committed, or the offender dwelled. And there was to be no commutation at all, but for very weighty reasons, and in cases very particular. And when commutation was made, it was to be with the privity and advice of the bishop. In archbishop Whitgift's register we find that the commutation of penance, without the bishop's privity, was complained of in parliament. And it was one of King William's injunctions, that commutation be not made, but by the express order and direction of the bishop himself declared in open court. And by the canons of 1640, if in any case the chancellor, commissary, or official should commute penance without the privity of the bishop; he was at least to give a just account yearly to the bishop, of all commutation money in that year, on pain of one year's suspension. Gibs. 1045.

In the reign of queen Anne, this matter was taken into consideration by the convocation, who made the following regulations; viz.--That no commutation of penance be hereafter accepted or allowed of, by any ecclesiastical judge, without an express consent given in writing by the bishop of the diocese, or other

(n) 2 Roll. Rep. 384.

ordinary having exempt jurisdistion; or by some person or persons to be especially deputed by them for that purpose; and that all commutations, or pretended commutations, accepted or allowed otherwise than is hereby directed, be ipso facto null and void. — And that no sum of money, given or received for any commutation of penance, or any part thereof, shall be disposed of to any use, without the like consent and direction in writing, of the bishop, or other ordinary having exempt jurisdiction, if the cause hath been prosecuted in their courts; or of the archdeacon, if the cause hath been prosecuted in his court. And all money received for commutation, pursuant to the foregoing directions, shall be disposed of to pious and charitable uses, by the respective ordinaries above named: - Whereof at the least one third part shall by them be disposed of in the parish where the offenders dwell. And that a register be kept in every ecclesiastical court, of all such commutations, and of the particular uses to which such money hath been applied. And that the account so registered be every year laid before the bishop, or other ordinary exempt having episcopal jurisdiction, in order to be audited by them. And that any ecclesiastical judge or officer offending in any of the premises, be suspended for three months for the said offence. Gibs. 1046.

But as none of these regulations are now in force, nor of the said canons made in the time of queen Elizabeth and in the year 1640; Mr. Oughton says, generally, that commutation money is to be given to the poor where the offence was committed, or applied to other pious uses at the discretion of the judge, 1 Ought. 213.

About the year 1735, the bishop of Chester cited his chancellor to the archbishop's court at York, to exhibit an account of the money received for commutations, and to shew cause why an inhibition should not go against him, that for the future he should not presume to dispose of any sum or sums received on that account, without the consent of the bishop. In obedience to this an account was exhibited without oath; and that being objected to, a fuller was exhibited upon oath. And upon the hearing, several of the sums in the last account were objected to as not allowable, and an inhibition prayed to the effect above. But the [82] archbishop's chancellor refused to grant such inhibition; and was of opinion, that the bishop could only oblige an account; and so dismissed the chancellor without costs.