by and from thenceforth become fubject to the jurifdiction of the bishop of the diocefe: and that no prejudice may thereby arise to the patrons of fuch donatives, it is provided, that no fuch donative shall be so augmented, without confent of the patron under his hand and feal.

Penance.

general.

PENANCE is an ecclefiaftical punishment, ufed Of penance and in the difcipline of the church, which doth affect commutation ia the body of the penitent; by which he is obliged to give a public fatisfaction to the church, for the fcandal he hath given by his evil example. So in the primitive times, they were to give teftimonies of their reformation, before they were re-admitted to partake of the myfteries of the church. In the cafe of inceft, or incontinency, the finner is ufually injoined to do a publick penance in the ca-thedral or parish church, or publick market, barelegged and bareheaded in a white fheet, and to make an open confeffion of his crime in a prefcribed form of words; which is augmented or moderated according to the quality of the fault, and the difcretion of the judge. So in smaller faults and fcandals, a publick fatisfaction or penance, as the judge fhall decree, is to be made before the minifter, churchwardens, or fome of the parishioners, refpect being had to the quality of the cffence, and circumftances of the fact; as in the cafe of defamation, or laying violent hands on a minifter, or the like. God. Append. 18.

And as thefe cenfures may be moderated by the judge's difcretion, according to the nature of the offence; fo alfo they may be totally altered by a commutation of penance : and this hath been the ancient privilege of the ecclefiaftical judge, to admit that an oblation of a fum of money for pious ufes fhall be accepted in fatisfaction of publick penance. Id. 19.

But penance must be firft injoined, before there can be a commutation; or other wife it is a commutation for nothing. God. 89.

2. Lindwood and other canonifts mention three forts of Penance of di penance :

(1) Private; injoined by any prieft in hearing confeffions.

vers kinds.

(2) Publick;

By canon.

(2) Publick; injoined by the prieft for any notorious crime, either with our without the bishop's licence according to the custom of the country.

(3) Solemn penance; concerning which it is ordained by a conftitution of archbishop Peccham, as followeth : Whereas, according to the facred canons, greater fins, fuch as inceft and the like, which by their fcandal raise a clamour in the whole city, are to be chastised with folemn penance; yet fuch penance feemeth to be buried in oblivion by the negligence of fome, and the boldness of fuch criminals is thereby increased; we do ordain, that fuch folemn penance be for the future impofed, according to the canonical fanctions. 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 foever this penance was inflicted, it was performed in Lent only. At the beginning of every Lent, during thefe years, the offender was formally turned out of the church; the first year, by the bishop; the following year by the bishop, or prieft. On every Maundy Thursday, the offender was reconciled and abfolved, and received the facrament on Eafter-day, and on any other day till Low Sunday: This was done either by the bishop or priest. But the laft final reconciliation, or abfolution could be paffed regularly by none but the bishop. And it is obfervable, that even down to Lindwood's time, there was a notion prevailed, that this folemn penance could be done but once: If any man relapfed after fuch penance, he was to be thrust into a monaftery, or was not owned by the church; or however ought not to be owned according to the ftrictness of the canon: tho' there is reafon to apprehend, that it was often otherwife in fact. And indeed this folemn penance was so rare in those days, that all which hath been faid on this fubject was rather theory than practice, except perhaps in cafe of herefy. Johns. Pecch.

3. Boniface. We do ordain, that laymen fhall be compelled by the fentence of excommunication to fubmit to canonical penances, as well corporal as pecuniary, inflicted on them by their prelates. And they who hinder the fame from being performed, fhall be coerced by the fentences of interdict and excommunication. And if diftreffes fhall be made on the prelates upon this account, the diftrainers fhall be proceeded againft by the like penalties. Lindw. 321.

Which

Which corporal penances Lindwood fpecifieth in divers inftances; as thrufting them into a monaftery, branding, fuftigation, imprisonment. Lindw. 321.

Otbob. We do decree, that the archdeacons for any mortal and notorious crime, or from whence fcandal may arife, shall not take money for the fame of the offenders, but fhall 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 fome that are their fuperiors, when their subjects of the clergy or laity commit relapfes into adultery, fornication, or other notorious. exceffes, do for the fake 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 occafion of grievous fcandal, and ill example: Therefore we do ordain, that no money be in any wife received for notorious fin, in cafe the offender hath relapsed more than twice; on pain of reftoring double of what shall have been fo received within one month after the receipt thereof, to be applied to the fabrick of the cathedral church; and of fufpenfion ab officio, which they who receive the fame, and do not reftore double thereof within one month as aforefaid, fhall ipfo facto incur. And in commutations of corporal penances for money (which we forbid to be made without great and urgent caufe), the ordinaries of the places fhall use fo much moderation, as not to lay fuch grievous and exceffive publick corporal penances on offenders, as indirectly to force them to redeem the fame with a large fum of money. But fuch commutations, when they fhall hereafter be thought fit to be made, fhall be fo modeft, that the receiver be not thought rapacious, nor the payer too much aggrieved; under the penalties before mentioned. Lind. 323. 4. By the ftatute of Circumfpecte agatis, 13 Ed. I. By ftatute. f. 4. The king to his judges fendeth greeting: Ufe yourfelves circumfpectfully concerning the bifhops and their clergy, not punishing them if they hold plea in court chriftian of fuch things as be mere fpiritual, that is to wit, of penance injoined by prelates for deadly fin, as fornication, adultery, and fuch like; for the which fometimes corporal penance, and fometimes pecuniary is injoined () in which cafes the fpiritual judge fhall have

(0) 2 Rell. Rep. 384.

power

Difpofal of the commutation money.

power to take knowledge, notwithstanding the king's pro hibition.

By the ftatute of Articu'i cleri, 9 Ed. 2. ft. 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 fo punished will redeem upon their own accord fuch penances by money; if money be demanded before a fpiritual judge, the king's prohibition shall hold no place.

And by the fame ftatute, c. 3. If any lay violent hands on a clerk, the amends for the peace broken fhall 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 fhall be required before the prelate, and the king's prohibition shall not lie.

Before the prelate] It feems to be agreed by the canonifts, that archdeacons may not inflict pecuniary penalties, unless warranted by prefcription. Gibf.1046.

5. Dr. Ayliffe fays, that anciently the commutation money was to be applied to the ufe of the church, as fines in cafes of civil punishment are converted to the ufe of the publick. Al. Par. 413.

By feveral of the canons made in the time of queen Elizabeth, and in the year 1640, it was to be applied to pious and charitable ufes; and the Reformatio legum directed, that it should be to the ufe 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 reafons, and in cafes very particular. And when commutation was made, it was to be with the privity and advice of the bishop. In archbishop Whitgift's regifter we find that the commutation of penance, without the bishop's privity, was complained of in parliament. And it was one of King Willian'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 cafe the chancellor, commiffary, or official fhould commute penance without the privity of the bifhop; he was at leaft to give a juft account yearly to the bishop, of all commutation money in that year, on pain of one year's fufpenfion. Gibf.

1045.

In

In the reign of queen Anne, this matter was taken into confideration by the convocation, who made the following regulations; viz.That no commutation of penance be hereafter accepted or allowed of, by any ecclefiaftical judge, without an exprefs confent given in writ ing by the bishop of the diocefe, or other ordinary having exempt jurifdiction; or by fome perfon or perfons to be especially deputed by them for that purpose: and that all commutations, or pretended commutations, accepted or allowed otherwife than is hereby directed, be iplo facto null and void.-And that no fum of money, given or received for any commutation of penance, or any part thereof, fhall be difpofed of to any ufe, without the like confent and direction in writing, of the bishop, or other ordinary having exempt jurifdiction, if the caufe hath been profecuted in their courts; or of the archdeacon, if the caufe hath been profecuted in his court. And all money received for commutation, purfuant to the foregoing directions, fhall be difpofed of to pious and charitable uses, by the refpective ordinaries above named:Whereof at the least one third part fhall by them be difpofed of in the parifh where the offenders dwell. And that a regifter be kept in every ecclefiaftical court, of all fuch commutations, and of the particular ufes to which fuch money hath been applied. And that the account fo registered be every year laid before the bifhop, or other ordinary exempt having epifcopal jurisdiction, in order to be audited by them. And that any ecclefiaftical judge or officer offending in any of the premiffes, be fufpended for three months for the faid offence. Gibf. 1046.

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

About the year 1735, the bishop of Chefter cited his chancellor to the archbishop's court at York, to exhibit an account of the money received for commutations, and to fhew caufe why an inhibition fhould not go against him, that for the future he fhould not prefume to dif pofe of any fum or fums received on that account, without the confent 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, feveral of the fums in the laft account were VOL. III. objected

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