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Difpofal of the commutation money.

power to take knowledge, notwithstanding the king's pro

hibition.

By the ftatute of Articuli 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 fhail 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 fhall 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 fhall not lie.

Before the prelate] It feems to be agreed by the canonists, 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 use of the publick. Ayl. 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 fhould 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 reasons, 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 bifhop'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 cafe the chancellor, commiffary, or official fhould commute penance without the privity of the bishop; he was at least 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 the reign of queen Anne, this matter was taken into confideration by the convocation, who made the following regulations; viz.That no commutation of pehance 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 otherwise than is hereby directed, be ipfo 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 cause hath been profecuted in their courts; or of the archdeacon, if the cause hath been profecuted in his court. And all money received for commutation, pursuant to the foregoing directions, fhall be difpofed of to pious and charitable ufes, 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 bishop, or other ordinary exempt having epifcopal jurifdiction, in order to be audited by them. And that any ecclefiaftical judge or officer offending in any of the premifles, 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 cause why an inhibition fhould not go against him, that for the future he fhould not prefume to difpofe of any fum or fums received on that account, without the confent of the bifhop. 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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objected to as not allowable, and an inhibition prayed to the effect above. But the archbishop's chancellor refused to grant fuch inhibition; and was of opinion, that the bifhop could only oblige an account: and fo difmiffed the chancellor without cofts.

Pension.

PENSIONS are certain fums of money paid to cler

gymen in lieu of tithes. And fome churches have fettled on them annuities or penfions payable by other

churches.

Thus in the Regiftrum Honoris de Richmond, we find a penfion paid out of Coram or Coverham abbey in the county of York (unto which the church of Sedburgh was appropriated), to the prior of Connyside (unto whofe priory the church of Orton was appropriated) for the said church of Sedburgh, 20 s. Append. 94.

These penfions are due by virtue of fome decree made by an ecclefiaftical judge upon a controverfy for tithes, by which the tithes have been decreed to be enjoyed by one, and a penfion instead thereof to be paid to another; or they have arifen by virtue of a deed made by the confent of the parfon, patron, and ordinary. F. N. B. 117.

At the diffolution of monafteries there were many penfons iffuing out of their lands and payable to several ecclefiaftical perfons; which lands were vefted in the crown by the ftatutes of diffolution; in which ftatutes there is a faving to fuch perfons of the right which they had to those penfions: but notwithstanding fuch general faving, those who had that right were disturbed in the collecting and receiving fuch penfions; and therefore by another ftatute, to wit, the 34 & 35 H, 8, c. 19. it was enacted, that penfions, portions, corrodies, indemnities, fynodies, proxies, and all other profits due out of the lands of religious houfes diffolved, fhall continue to be paid to ecclefiaftical perfons by the occupiers of the faid lands. And the plaintiff“ may recover the thing in demand, and the value thereof in damages in the ecclefiaftical court, together with cofts. And the like he shall recover at the common law, when the cause is there determinable,

By

By the ftatuté of Circumfpecte agatis, 13 Ed. 1. ft. 4. If a prelate of a church, or a patron, demand of a parfon a penfion due to him; all fuch demands fhall be made in the Spiritual court: in which cafe, the spiritual judge shall have power to take knowledge, notwithstanding the king's probibition.

In purfuance of which, the general doctrine is, that penfions, as fuch, are of a fpiritual nature, and to be fued for in the fpiritual court; and accordingly when they have come in queftion, prohibitions have been frequently denied, or confultations granted; even though they have been claimed upon the foot of prefcription. Gibf. 706. (p)

But Lord Coke fays, if a penfion be claimed by prefcription, there, feeing a writ of annuity doth lie, and that prefcriptions must be tried by the common law, because common and canon law therein do differ, they cannot fue for fuch a penfion in the ecclefiaftical court. 2 Inft. 491.

But this hath fometimes been denied to be law: And in the cafe of Jones and Stone, T. 12 W. Holt chief juftice faid, he could never get a prohibition to ftay a fuit in the fpiritual court againft a parfon for a penfion by prefcription. Watf. c. 56. 2 Salk. 550.

In the cafe of Dr. Gooche and the bishop of London, M. 4 G. 2. The bishop libelled in the fpiritual court, fuggefting that Dr. Gooche, as archdeacon of Effex, is to pay Iol. due to the bishop as a preftation, for the exercise of his exterior jurifdiction. The Dr. moved for a prohibition, alledging that he had pleaded there was no prescription; and then that being denied, a prohibition ought to go for defect of trial. On the contrary, it was argued for the bifhop, that the libel being general, it must not be taken that he goes upon a prescription; but it is to be confidered in the fame light as the common case of a penfion, which is fuable for in the fpiritual court; and the nature of the demand fhews it must have its original from a compofition, it being a recompence for the archdeacon's being allowed to exercise a jurifdiction, which originally did belong to the ordinary. And by the court: The bishop may certainly intitle himself ab antiquo, without laying a prescription; and as it is only laid in general, there is no ground for us to interpofe, till it appears by the proceedings that a prefcriptive right will come in

(P) Noy, 16. 1 Jalk. 58. Cro. Elix. 675. Collier's cafe.

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queftion; if they join iffue on the plea, it will then be proper to apply; but at prefent there ought to be no prohibition. Str. 879.

M. 1724. Bailey and Cornes. In the exchequer: A bill was preferred for a penfion only, payable to the preacher of Bridgnorth; and upon hearing of the cause (which was afterwards ended by compromise) it seemed to be admitted, that a bill might be brought for a penfion only. Bunb. 183.

A bishop may fue for a penfion before a chancellor, and an archdeacon before his official. Wood. b. 2. c. 2.

If a fuit be brought for a penfion, or other thing due of a parfonage, it feems that the occupier (tho' a tenant) ought to be fued; and if part of the rectory be in the hand of the owner, and part in the occupation of a tenant, the fuit is to be against them both. Wats. c. 53.

And tho' there is neither houfe, nor glebe, nor tithes, nor other profits but only of eafter-offerings burials and chriftnings; yet the incumbent is liable to pay the penfion. Hardr. 230.

If an incumbent leave arrearages of a penfion, the fucceffor fhall be anfwerable; because the church itself is charged, into whatsoever hand it comes. Cro. Eliz. 810.

Pentecostals.

PENTECOSTALS, otherwife called Whitfun-far

things, took their name from the ufual time of payment, at the feaft of pentecoft. These are spoken of in a remarkable grant of king Henry the eighth to the dean and chapter of Worcester; in which he makes over to them all thofe oblations and obventions, or fpiritual profits, commonly called whitfun-farthings, yearly collected or received of divers towns within the archdeaconry of Worcester, and offered at the time of pentecoft. From hence it appears that pentecoftals were oblations; and as the inhabitants of chapelries were bound, on some certain feftival or feftivals, to repair to the mother church, and make their oblation there, in token of fubjection and dependance; fo, as it feems, were the inhabitants of the diocese obliged to repair to the cathedral (as the mo ther church of the whole diocefe) at the feaft of pentecoft.

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