"The decree is, that he is to perform the usual penance.' What the PENANCE. usual penance is does not appear. The affidavit shows that something more was to be afterwards done by the registrar, namely, to specify in the schedule what the penance was to be, as to time, place, and manner of performing it. The defendant ought to have had the decree exhibited to him, in its most perfect form, before he could be considered in contempt for disobeying it. There is nothing said in the significavit about the payment of costs. The contempt is not said to be for non-payment of costs, but for not performing the usual penance. The defendant ought to have been distinctly told what the penance was, and not left to find it out after he had done something else, namely, paid the costs." PENANCE. Where a party has been convicted of incest, penance has been remitted, REMISSION OF when it was shown that the health of the party ordered to perform it would have been endangered thereby, and where the promoter expressed his concurrence with the prayer of such remission. Thus, in Chick v. Ramsdale (1), which was a criminal proceeding against the defendant for marrying his late wife's sister; the Court annulled the marriage and enjoined penance, but remitted the latter punishment in consequence of the illness of the parties; Dr. Lushington observing, "The Court will not attempt to enforce the penance against either of the parties at present; but I am bound to consider whether I ought to suspend the sentence merely, or dispense with it altogether. The learned counsel for the promoter has expressed his ready concurrence in the suspension of the penance; but in my judgment, considering the state of both parties, by allowing the threat of penance to hang over their heads for an indefinite time for the extent of time for which the penance is to be suspended it is impossible to tell the probable consequences would be almost as detrimental as the actual performance of it. I therefore think it right and fitting to remit the penance." (2) As the censures of penance may be moderated by the judge's dis- Commutation cretion, according to the nature of the offence, so also they may be totally of penance. altered by a commutation of penance; and this has been the ancient privilege of the ecclesiastical judge to admit an oblation of a sum of money for pious uses to be accepted in satisfaction of public penance. (3) But penance must be first enjoined before there can be a commutation, or otherwise it is a commutation for nothing. By the Statute of Circumspectè agatis (4), the king to his judges sendeth greeting: "Use yourselves circumspectly concerning the [bishops and their clergy], not punishing them if they hold pleas in court Christian of such things as be mere spiritual, that is, to wit, of penance enjoined by prelates for deadly sin, as fornication, adultery, and such like; for the which sometimes corporal penance, and sometimes pecuniary, is enjoined" (5); “in which cases the spiritual judge shall have power to take knowledge, notwithstanding the king's prohibition." Penance must be enjoined be fore there can be a commuta tion. Stat. 13 Edw. 1. st. iv. (1) 1 Curt. 37. (2) Vide etiam Burgess v. Burgess, 1 Consist. 393. (3) Regulations respecting the cases in which commutation was to be allowed were made by the canons of 1640, and by the con vocation in the reign of Queen Anne, but (4) 13 Edw. 1. st. iv. Stephens' Eccle- (5) Barker v. Jones, 2 Rol. 384. PENANCE By stat. Articuli cleri (1), "if a prelate enjoin a penance pecuniary to a Stat. 9 Edw. 2. man for his offence, and it be demanded, the king's prohibition shall hold st. i. c. 2. Complaints against the official of Oxford for abuses in the commutation of penance. Disposition of commutation money. PARTY IN CON place. But if prelates enjoin 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 judge spiritual, the king's prohibition shall hold no place." And by c. 3. of the same statute, but which was repealed by stat. 9 Geo 4. c. 31. & stat. 53 Geo. 3. c. 127., if any person laid violent hands on a clerk. the amends for the peace broken was to be before the king, and for the excommunication before a prelate (2), that corporal penance might be enjoined; which if the offender redeemed of his own good will, by giving money to the prelate, or to the party grieved, it was to be required before the prelate, and the king's prohibition was not to issue. In the 21st of James 1. a complaint was brought into the Star Chamber against Dr. Barker (3), official of Oxford, for divers abuses in the commutation of penance, viz. that he granted it to a person relapsed, that he did not employ the money to pious uses; that he admitted the party to commutation before enjoining the penance, and therefore it was a commutation for nothing; that he did it in open court. Upon which Hobart drew a distinction between commutations, in causes between party and party, and in causes ex officio; that the first could not be made but in open court, and with consent of the opposite party; but that the other might be done out of court; and that as to its not having been done in the presence of the public register, if it were done before a notary that was sufficient, although it was not entered in the acts of the court; but that, Hobart said, was not chargeable on the official, but on the actuary. Respecting the disposition of commutation money Oughton (4) says, 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. Ayliffe (5) states, that 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. 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 show 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. But the archbishop's chancellor refused to grant the inhibition, and was of opinion that the bishop could only oblige an account; and so dismissed the chancellor without costs. (6) But where an application was made to set aside a writ de contumace (1) 9 Edw. 2. st. i. c. 2. (2) Before a prelate :- It seems to be agreed by the canonists, that archdeacons cannot inflict pecuniary penalties, unless warranted by prescription. Gibson's Codex, 1046. Lyndwood, Prov. Const. Ang. 51. (3) 2 Rol. 384. (4) P. 213. (5) Parergon Juris, 413. Lord Denman capiendo, on the ground that the defendant had not been admonished to PENANCE. take out a schedule of penance, and that he was sentenced to perform NON-PAYMENT penance in the minister's house, which he had no right to enter; it appear- or COSTS. ing, nevertheless, that there was an order for the party to pay costs, for the not doing which he was in contempt, and for which in fact the significavit had issued; the application was rejected, for the sentence awarded payment of a precise sum, 251. costs; and if the proceedings of the court had been, as was suggested, defective, the costs would not be thereby decreased. Thus in Kington v. Hack (1) Lord Denman observed, "The defendant's allega- Judgment of tion, that he was not admonished to take out a schedule, is answered by an in Kington v. affidavit on the other side, stating that he was twice personally admonished. Hack. The deponent, indeed, will not say that the defendant perfectly understood the admonition, because he was in a state of great passion. But a man is not to close his understanding against what he might hear, by his own act. The affidavit would have been more satisfactory if it had stated a belief that he heard what was said; but there appears, on the statement, no reason that he should not have heard it. And he afterwards gave notice of appeal against the sentence, and asked for time to prosecute such appeal. I therefore think that he appears to have been duly admonished. Then, as to the other objections: if the sentence be sufficient in one distinct part of it, this rule cannot be granted. Now it appears that the sentence awarded payment of a precise sum of 251., the costs and expenses taxed and decreed to be paid to the plaintiff for her costs and expenses incurred in the cause. Whatever objection may be raised as to ordering penance at the minister's house, or on other points, yet, if the Ecclesiastical Court had power to impose costs, the defendant is liable to those; that is an independent subjectmatter: and I do not see how the costs can have been increased by any defective proceeding of the Court in the manner suggested. The rule must therefore be discharged." PENSIONS. DEFINED - How they became due - Stat. 13 Edw. 1. st. iv. — Stat. 26 Hen. 8. c. 3. 88. 21 & 22. Stat. 34 & 35 Hen. 8. c. 19. ss. 4 & 5.- Before whom a bishop may sue for a pension · Incumbent liable to pay the pension, because the church itself is charged Prohibition to stay a suit in the Spiritual Court for a pension will not lie. Pensions are certain sums of money paid to clergymen in lieu of tithes; DEFINED. and some churches have settled on them annuities or pensions payable by other churches. These pensions are due by virtue of some decree made by an ecclesias- How they tical judge upon a controversy for tithes, by which the tithes have been became due. decreed to be enjoyed by one, and a pension instead thereof to be paid to another; or they have arisen by virtue of a deed made by the consent of the parson, patron, and ordinary. (2) (1) 7 A. & E. 708. (2) F. N. B. 117. PENSIONS. Stat. 13 Edw. 1. st. iv. By stat. 13 Edw. 1. st. iv. (Circumspecte agatis), "if a prelate of a church demand of a parson a pension due to him, all such demands are to be made in the Spiritual Court;" in which case "the spiritual judge shall have power to take knowledge, notwithstanding the king's prohibition.” (1) By stat. 26 Hen. 8. c. 3. ss. 21 & 22. they which pay pensions to others c. 3, ss. 21 & 22. out of their spiritual living, can retain the tenth part thereof, and no pension was to be reserved upon the resignation of a benefice above the value of the third part. Stat. 26 Hen. 8. Stat. 34 & 35 Hen. 8. c. 19. ss. 4 & 5. Before whom a bishop may sue for a pension. Incumbent liable to pay the pension, because the church itself is charged. Prohibition to stay a suit in the Spiritual Court for a pension will not lie. By stat. 34 & 35 Hen. 8. c. 19. ss. 4 & 5. (2) portions, pensions, corrodies, indemnities, synodies, proxies, and all other profits due out of the lands of religious houses dissolved, are to continue to be paid to ecclesiastical persons by the occupiers of the lands. And the plaintiff may recover the thing in demand, and the value thereof in damages in the Ecclesiastical Court, or at common law, when the cause is there determinable, together with the costs. A bishop may sue for a pension before his chancellor, and an archdeacon before his official. (3) If a suit be brought for a pension or other thing due of a parsonage, it seems that the occupier (though a tenant) ought to be sued; and if part of the rectory be in the hand of the owner, and part in the occupation of a tenant, the suit is to be against them both. (4) And though there is neither house, nor glebe, nor tithes, nor other profits, but only of Easter offerings, burials, and christenings, yet the incumbent is liable to pay the pension. (5) And if an incumbent leave arrearages of a pension, the successor will be answerable, because the church itself is charged, into whatsoever hand it comes. (6) In pursuance of stat. 13 Edw. 1. st. iv. the general doctrine is, that pensions, as such, are of a spiritual nature, and to be sued for in the spiritual court; and accordingly, when they have come in question, prohibitions have been frequently denied, or consultations granted, notwithstanding they have been claimed by prescription. (7) But Lord Coke says, "If a pension be claimed by prescription, there. seeing a writ of annuity doth lie, and that prescriptions must be tried by the common law, because the common and the canon law do therein differ, they cannot sue for such a pension in the Ecclesiastical Court.” (8) But this has sometimes been denied to be law; and in the case of Jones v. Stone (9) Chief Justice Holt said, he could never get "a prohibition to stay a suit in the Spiritual Court against a parson for a pension by prescription." In Gooche (D.D.) v. London (Bishop of) (10), the bishop libelled in the Spiritual Court, suggesting that Dr. Gooche, an archdeacon of Essex, ought PENSIONS. to pay him 107. as a prestation for the exercise of his exterior jurisdiction. .The doctor moved for a prohibition, alleging that he had pleaded there was no prescription; which being denied, a prohibition ought to go for defect. of trial. On the contrary, it was argued for the bishop, that the libel being general, it must not be taken that he goes upon a prescription; but it is to be considered in the same light as the common case of a pension which is suable in the spiritual court; and the nature of the demand shows it must have its original from a composition, it being a recompense for the archdeacon's being allowed to exercise a jurisdiction which originally belonged to the ordinary. To these arguments the Court answered: "They may certainly entitle themselves ab antiquo, without laying a prescription; and as they have only laid it in general, there is no ground for us to interpose, till it appears by the proceedings, that a prescriptive right will come in question; if they join issue on the plea, it will then be proper to apply; but at present there ought to be no prohibition." In the Vicar of Halifax's case (1), a vicar sued in the Ecclesiastical Court the dean and chapter of Wells, parson of a church, for a pension, and they prayed a prohibition; but it was denied, because a pension was a spiritual thing, for which the vicar might sue in the Spiritual Court. In Bailey v. Cornes (2) a bill was preferred for a pension 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 pension. DEFINED. PENTECOSTALS. Due by custom in some dioceses — Recoverable in the Spiritual Courts. Pentecostals, otherwise called Whitsun farthings, took their name from DEFINED. the usual time of payment, at the feast of Pentecost. These are spoken of in a remarkable grant of King Henry VIII. to the dean and chapter of Worcester, in which he makes over to them, omnes illas oblationes et obventiones, sive spiritualia proficua, vulgariter vocat Whitsun farthings, annuatim collecta sive recepta de diversis villatis in comitatibus nostris Wigorn. Warwick, et Hereford, infra archidiaconatum Wigorn. et tempore pentecostes oblata. From hence it appears that pentecostals were oblations; and as the inhabitants of chapelries were bound, on some certain festival or festivals, to repair to the mother church, and make their oblations there, in token of subjection and dependence, so, as it seems, were the inhabitants of the diocese obliged to repair to the cathedral (as the mother church of the whole diocese) at the feast of Pentecost. Something like this was the |