RESIDENCE. 



parfonage houfe ; for it hath been refolved, that the ftatute 

 intended refidence, not only for ferving the cure, and for 

 hospitality, hut alio for maintaining the houfe, that the fuc- 

 cefibr alio may keep hofpitality there. 2J Hen. VIII. 

 cap. 16. 33 Hen. VIII. cap. 28. 2S Hen. VIII. cap. 13. 

 On .1 review of thefe ffatutes, a queltiou has occurred, how 

 far, taken together, they fuperfede the canon law, lo as to 

 take aivav the power which the ordinary had before, of en- 

 joining ivlidence to the clergy of his diocvie. It feems to 

 be clear, that before thefe flatutes, the bifhops of this 

 realm had and exercifed a power of calling their clergy to 

 refidence ; but more frequently, they did not exert this 

 power, which fo far forth was to the clergy a victual difpen- 

 fation for non-refidence. But this not exerting of their 

 power was in them not always voluntary ; for thj y were un- 

 der the controlling inlluence of th- pop.-, wi -. . : 

 penfations of non-relidence to as many as would purchafe 

 them, and difpofed of abundance of" ecclefiaftical prefer- 

 ments to foreigners, who never refided here at all. The 

 king alfo, as appears, had a power to require the fervice of 

 clergymen ; and confequently in fucli cafe to difpenfe with 

 them for non refidence upon their benefice-.. This pi . 

 of the king is referved to him by the aforefaid aft of the 

 21 Hen. VIII. c. 13. But it is the power of difpenfation 

 in the two former cafes which is intended to be taken away, 

 namely, by the bifhop, and by the pope ; and by the faid 

 aft refidence is injoined to the clergy, under the penalty 

 therein mentioned, notwithstanding any difpenfation to the 

 contrary, from the court of Rome or eliewhere ; with a 

 provifo neverthelcfs, that the faid aft mail not extend nor 

 be prejudicial to the chaplains and others therein fpccially 

 excepted. It is argued, that this aft being made to reftify 

 what had been infufficient or ineffectual in the canon law, and 

 infiifting a temporal penalty to inforce the obligation of re- 

 fidence, the parliament intended that the faid aft fhould be, 

 from thenceforth, if not the fole, yet the principal rule of 

 proceeding in this particular ; and confequently, that the 

 perfons excepted in the act need no other exemption than 

 what is given to them by the aft of their non-refidence. 

 this it is anfwered, that the intention of the aft was 

 not to take away ;.ny power which the bifhop had of injoining 

 residence, but the contrary ; namely, it was to take away 

 that power which the bifhop or pope excrcifed, of granting 

 difpenfations for non-refidence, that is to fay, the aft left 

 to them that power which was beneficial, and only look 

 from them that which tended to the detriment of the church ; 

 and, consequently* that the bifhop may injoin refidence to the 

 clergy as he might before, only he may not difpenfe with 

 them as he did before for noa-refiden.ee. And indeed, from 

 any thing that appears upon the face of the act, the con- 

 trary fuppofition feemeth to bear fomewhat hard againlt the 

 rule which hath generally been adhered to in the conltruftion 

 hi afts of parliament, that an aft of parliament in the affir- 

 mative doth not take away the ecclefiallicaljurifdiftion, and 

 that the fame fhall not be taken away in any aft of parlia- 

 ment, but by exprefs words. It is therefore further urged, 

 that the three fubfequent afts do explain this aft, and by 

 the exprefs words thereof do eflablifh the foregoing inter- 

 pretation. In the fir 11 of the three it is faid, that the perfons 

 therein mentioned may retain one chaplain which may be ab- 

 fent from his benefice, and not rejident upon the fume ; in the fe- 

 cond it is laid, that perfons above forty years of age, re- 

 fiding in the imivcrfities, fhall not be excufd of their non-refi- 

 dence, and again, that perfons under forty years of ago, fhall 

 not enjoy the privilege of non-refidence contained in the provifo 

 of the faid former atl, unlcfs they perform the common ex- 

 ercifes there, and the like, which implies, that if they do 

 Vou XXX. 



this, they mall enjoy fuch privilege : and in the third, it is 

 faid, that the perfons therein mentioned may retain one 

 chaplain, which may be abfent from his benefice, and non-rejident 

 upon the fame ; and it is not to be fuppofed, that the parlia- 

 ment intended a greater privilege to the chaplains of the in- 

 ferior officers mentioned in the faid laft aft, than to the 

 chaplains of the royal family and principal nobility mentioned 

 in the firft aft. Unto this the moil appofitc anfwer feemeth 

 to be, that it is not expreffed abfolutely in any of the faid 

 three acts, that the chaplains or others therein mentioned 

 fhall enjoy the privilege of non-refidence, or may be abfent 

 from their benefices, and not refident upon the fame ; but 

 only this, that they may be abfent or non-refident as afore- 

 faid, the faid flatute made in the faid twenty -Jirfl year, or any 

 other flatute or ordinance to the contrary not wit hftanding. So 

 that they are only exempted thereby fram the reltraints in- 

 troduced by the ftatute law ; but in other refpefts are left 

 as they were before. — But concerning this, although it is a 

 cafe likely enough to happen every day, there hath been no 

 adjudication. 



By 43 Geo. III. c. 84. it is enafted, that fo much of 

 21 Hen. VIII. c. 13. as impofes the penalty of ten pounds 

 on any fpiritual perfon who fhall not keep refidence on one 

 of his dignities, prebends, or benefices, but abfent himfelf 

 one month together, or two months, to be accounted at fe- 

 veral times, in any one year, fhall be, and the fame is hereby 

 repealed ; and that every fpiritual perfon, being pofTefled of 

 any archdeacanry, deanery, or other dignity, prebend, be- 

 nefice, donative, or perpetual curacy, or parochial chapelry, 

 who fhall, without fufficient caufe, as in the faid aft, or the 

 25 Hen VIII. c. 16. or in 28 Hen. VIII. c. 13. or in 

 33 Hen. VIII. c. 28. is fpecified, or luch other fufficient caufe 

 as would exempt fuch fpiritual perfon from any of the pains, 

 penalties, and forfeitures under the faid recited afts, for any 

 non-refidence, and who fhall not have any fuch licence or 

 exemption as js in this aft mentioned, wilfully abfent himfelf 

 therefrom for three months together, or to be accounted at 

 feveral times in any one year, and make his refidence at any 

 other place or places, except at fome other dignity, prebend, 

 benefice, donative, perpetual curacy, or parochial chapelry, 

 of which he may be pofTefled, (lull, when fuch abfence fhall 

 exceed luch period, and not exceed fix months, forfeit and 

 pay one-third of the annual value of the dignity, prebend, 

 benefice, donative, perpetual curacy, or parochial chapelry, 

 from which he fhall fo abfent himfelf ; and when fuch abfence 

 (hall exceed fix months, and not eight months, one-half of 

 fuch annual value ; and when fuch abfence fh all exceed eight 

 months, two-thirds of fuch annual value ; and when fuch 

 abfence fhall have been for the whole of the year, three- 

 fourths of fuch annual value ; to be recovered by aftion of 

 debt, bill, plaint, or information, in any of his majefty's 

 courts of record at Weftminfter, or the courts of great fef- 

 fions in Wales, wherein no effoign, privilege, proteftion, or 

 wager of law, or more than one imparlance, fhall be allowed ; 

 and the whole of every fuch penalty or forfeiture fhall go and 

 be paid to the perfon or perfons who fhall inform and fue 

 for the fame, together with fuch coils of iuil as fhall be al- 

 lowed; provided that no parfonage thai hath a vicar en- 

 dowed, or perpetual curate, and having no cure of fouls, 

 fhall be taken to be or be comprehended under the name of 

 benefice, within the meaning of this aft. f. 12. 



No fpiritual perfon holding- any office, i:i luch manner ah 

 the fame, under any of the provifions of the faid recited 

 afts, would exempt luch fpiritual perfons from refidence, or 

 from the penalties and forfeitures in the faid afts contained 

 for non-relidence, or aftually lerving as a chaplain of the 

 houfe of commons, or as a clerk of his majefty's clofet, or a« 



C a deputy 



