and hold court; and in fuch cafe, if the party who lives within the peculiar be fued in the bishop's court, a prohibition fhall be granted: but if the archdeacon hath not a peculiar, then the bishop and he have concurrent jurif diction, and the party may commence his fuit, either in the archdeacon's court or the bishop's, and he hath election to chufe which he pleaseth: and if he commence in the bishop's court, no prohibition fhall be granted; for if it should, it would confine the bishop's court to determine nothing but appeals, and render it incapable of having any caules originally commenced there. L. Raym. 123.

It feems to be true doctrine, that no exemptions granted to perfons or bodies under the degree of bifhops, extend to a power of employing any bifhop they can procure, to perform for them fuch acts as are merely epifcopal, unless Special words be found in their grants of exemption, impowering and warranting them fo to do; but that all fuch acts are to be performed by the bishop of the diocefe within which they are fituated, after the exemption as much. as before: Or, in other words, that the exemptions in which no fuch claufe is found, are only exemptions from the exercise of fuch powers, as the perfons or bodies are capable of exercifing. Thus it is in granting letters dimiffory (as hath been fhewed before, in the title Didination). And thus it feems to have been understood, in the act of confecrating churches and churchyards, and reconciling them when polluted; by a licence which we find the dean of Wind for had from the guardian of the fpiritualties of Salisbury, to employ any catholick bishop to reconcile the cloyster and yard of the faid free chapel, when they had been polluted by the fhedding of blood.Gibf. 978.

In the time of archbishop Winchelfey, upon an appeal to Rome, in a controverfy concerning Pagham, a peculiar of the archbishop of Canterbury; it was faid, in the representation to the pope, to be of Canterbury diocese; which was objected againft in the exceptions on the other fide, because in truth and notoriety it is in the diocese of Chichefter. Which was a juft exception in point of form: because the proper ftyle of those peculiars, as often as they are mentioned in any inftruments, is, of or in fuch a diocefe (namely, the diocefe in which they are fituated) and of the peculiar and immediate jurifdiction of the archbishop. Gibl. 979.

7. Peculiars belonging to monafteries; concerning Of monafterier, which, it is enacted by the 31 H. 8. c. 13, that such of

the

Appeal from places exempt.

Vifitation of places exempt.

the late monafteries, abbathies, priories, nunneries, colleges, hofpitals, houfes of friers, and other religious and ecclefiaftical houfes and places, and all churches and chapels to them belonging, which before the diffolution were exempted from the vifitation and other jurifdiction of the ordinary, fhall from henceforth be within the jurifdiction and vifitation of the ordinary, within whofe diocele they are fituate, or within the jurifdiction and vifitation of fuch perfons as by the king fhall be limited and appointed. f. 23.

Such exemptions were commonly granted at Rome, to thofe who folicited for them; especially to the larger monasteries, and fuch who had wealth enough to folicit powerfully but the right of vifitation being of common right in the bishop, the religious who had obtained fuch exemptions, were liable to be cited, and were bound upon pain of contumacy, either to submit to his vifitation, or to exhibit their bulls of exemption, to the end they might be viewed and examined, and the bishop might fee of what authority and extent they were. And whereas this ftatute vefts a power in the king, to fubject any of those religious houses which were heretofore made exempt, to fuch juris diction as he should appoint, exclufive of the ordinary; there can be no doubt, but that the perfons who claim exemption from the vifitation of the ordinary in virtue of fuch appointment, are obliged upon pain of ecclefiaftical cenfures (in like manner as the religious were) to fubmit the evidences of their exemption to the examination of the ordinary; without which, it is impoffible for him to know how far his authority extends. Gibf. 977:

8. By the 25 H. 8. c. 19. All appeals to be had from places exempt, which heretofore, by reafon of grants or liberties of fuch places exemp', were to the bishop or fee of Rome, fhall be to the king in chancery; which shall be definitively determined by authority of the king's commiffion fo that no archbishop or bishop fhall intermit or meddle with any fuch appeals, otherwife than they might have done before the making of this act. f. 6.

9. By the 25 H. 8. c. 21. Vifitations of places exempt, which heretofore were vifited by the pope, fhall not be by the archbishop of Canterbury; but in fuch cafes, redrefs vifitation and confirmation shall be by the king, by commiffion under the great feal.

And by the ftatute of the 1 G. ft. 2. c. 10. All dona tives which have received or fhall receive the augmentation of the governors of queen Anne's bounty, fhall there

by

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

Penance.

general.

1. PENANCE is an ecclefiaftical punishment, ufed Of penance and in the difcipline of the church, which doth effect commutation in the body of the penitent; by which he is obliged to give a public fatisfaction to the church, for the scandal 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 cathedral 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 fmaller 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, respect being had to the quality of the offence, and circumstances 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 otherwise it is a commutation for no

thing. God. 89.

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

(1) Private; injoined by any prieft in hearing confef

fions.

vers kinds.

(2) Publick;

By canon.

(2) Publick; injoined by the priest for any notorious crime, cither 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 bifhop 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 bifhop; the following year by the bishop, or priest. 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 prieft. But the laft final reconci liation, or absolution 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 monattery, 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 fo rare in those days, that all which hath been said 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 submit 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 interdi&t and excommunication. And if diftreffes fhall be made on the prelates upon this account, the diftrainers fhall be proceeded against by the like penalties. Lindw. 321.

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, fhall not take money for the fame 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 of the punishment; and the archdeacons, and their officials, and fome that are their fuperiors, when their fubjects 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 fhould be inflicted for a terror to others; and they who receive the money apply it to the ufe of themselves, and not of the poor, or to pious ufes; 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 relapfed more than twice; on pain of reftoring double of what fhall 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 excelfive publick corporal penances on offenders, as indirectly to force them to redeem the fame with a large fum of 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. 1. By ftatute. f. 4. The king to his judges fendeth greeting: Ufe yourfelves circumfpectfully concerning the bishops 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 Roll. Rep. 384.

power