than four, for a license or dispensation. Ayl. Par. [418.] But this seemeth contrary to the words of the clause as above recited. $25. Provided also, that no person to whom any number of chaplains or any chaplain, by any of the provisions aforesaid is limited, shall in any wise, by colour of any of the same provisions, advance any spiritual person or persons, above the number of them appointed, to receive or keep any more benefices with cure of souls, than is above limited by this act, any thing specified in the said provisions notwithstanding; and if they do, then every such spiritual person or persons, so advanced above the said number, to incur the penalty contained in this act.

Above the number] Altho' a chaplain retained above the number, be promoted before those who were duly retained acccording to the statute; such retainer (above the number) shall neither avail him, nor divest those who were duly retained of the right of purchasing dispensation; nor shall he ever have benefit by his retainer (even tho' the rest are dead) unless it be renewed upon the death of one of those who made up the statutable number: inasmuch as the retainer was null ab initio; and a chaplain once legally qualified, cannot be discharged at pleasure, to make way for others. Gibs. 909.

So if a baron (who can have but three chaplains) doth qualify three accordingly, and they being advanced to pluralities, he upon displeasure or for other cause doth dismiss them from their attendance, yet they are his chaplains at large, and may hold their pluralities for their lives: and tho' he may entertain as many others as he will, yet he cannot qualify any of them to hold a plurality, whilst the first three are living. (1) And so of others. But as any of the three first die; he may qualify others, if so be he retain them anew after the death of the first. Wats. c. 3.

If a baron, who may retain three chaplains as aforesaid, be made warden of the cinque ports (who may have a chaplain in respect of his office,) yet shall he have but three; and if a baron hath three, and be made an earl, yet he shall have but five in all; and so of the rest: because the statute is to be taken strictly against pluralities. Gibs. 909. (2)

$29. Provided, that it shall be lawful to every spiritual person, being chaplain to the king, to whom it shall please the king to [104] give any benefices or promotions spiritual, to what number soever it be, to accept and take the same, without incurring the penalty and forfeiture of this statute.

(1) For otherwise an infinite number might be advanced in fraud of the statute, Drury's case, 4 Rep. 90.; thus a supernumerary is not qualified for plurality without being retained de novo on death of another chaplain. 1 And. 200.

(2) Drury's case, 4 Rep. 90.

Being chaplain to the king] It hath been resolved in the court of king's bench, that a chaplain extraordinary is not a chaplain within this statute, but only the waiting chaplains in ordinary; that is, not one who has only an entry of his name made in the book of chaplains, but one who has also a waiting time. Gibs, 909. (3) 1 Salk. 162.

To accept and take the same] Without previous dispensation; which the king himself, as supreme ordinary, hath power to grant, and his presentation of his own chaplain imports the granting of it. But if the king's chaplain be presented to a second benefice by a subject, a dispensation is necessary, and must be obtained before his institution to the second living. Gibs. 909. 1 Salk. 161. S. C.

§31. Provided also, that no deanery, archdeaconry, chancellorship, treasurership, chantership, or prebend in any cathedral or collegiate church, nor parsonage that hath a vicar endowed, (4) nor any benefice perpetually appropriate, be taken or comprehended under the name of benefice having cure of souls, in any article afore specified.

33. Provided also, that every duchess, marquiss, countess, baroness, widows, which have taken, or that hereafter shall take any husbands under the degree of a baron may take such number of chaplains, as is above limited to them being widows, and that every such chaplain may purchase license to have and take such number of benefices with cure of souls, in manner and form as they might have done, if their said ladies and mistresses had kept themselves widows.

Being widows] And tho' they marry, the retainer before marriage stands good, and shall have its effect after marriage. If they marry under the degree of a baron, they are specially provided for in this clause, and if they marry a baron, or above that degree, my lord Coke has laid down the law in the following words: If a woman baroness retaineth two chaplains according to the statute, and afterwards taketh one of the nobility to husband; the retainer of these two chaplains remaineth, and they without new retainer may take two benefices; for their retainer

(3) Brown v. Mugg, 2 Lord Raym. 791. S. C.

Where

(4) See 57 G. 3. c. 99. §81. S. P. infra, tit. Residence. an act of parliament creates a new parish church and rectory, and directs that the bishop shall confer a certain prebend on the rector, and that the prebend shall remain united and annexed to the rectory for ever: this is not such an appropriation of the rectory to the prebend as makes it an appropriate benefice within the stat. 21 H. 8. c. 13. § 31., and tenable with another benefice having cure of souls. So though another act speaks of the rectory as inseparably annexed to the prebend, Brazen-nose College v. Salisbury, (Bishop) 4 Taunt.

831.

Regulation of dis

pensations by canon.

was not ended by the marriage. 4 Rep. 119. Gibs. 909. [but she cannot retain during coverture. Ibid. Com. Dig. tit. Esglise (N. 8.)]

4 Can. 41. No license or dispensation for the keeping of more benefices with cure than one, shall be granted to any, but such only as shall be thought very well worthy for his learning, and very well able and sufficient to discharge his duty: that is, who shall have taken the degree of a master of arts at the least in one [105] of the universities of this realm, and be a public and sufficient preacher licenced. Provided always, that he be by a good and sufficient caution, bound to make his personal residence in each of his said benefices for some reasonable time in every year; and that the said benefices be not more than thirty miles distant asunder; and lastly, that he have under him, in the benefice where he doth not reside, a preacher lawfully allowed, that is able sufficiently to teach and instruct the people.

Very well worthy for his learning] So is the tenor of the Lateran council under Innocent the third against pluralities; where it is allowed, in this particular case and in no other, that the see apostolick may dispense with persons of sublime abilities and learning, that they may be honoured with more benefices than one. Gibs. 910.

A publick and sufficient preacher licenced] With regard to his being thus qualified (which in those days was not a common qualification), there is usually a proviso in the body of the dispensation, that in either of the churches he preach thirteen sermons every year, according to the orders of the church of England published in that behalf, and therein handle the word of God religiously and reverently. Gibs. 910.

Bound to make his personal residence for some reasonable time] In every dispensation to hold two benefices, there is a proviso, that in that benefice from which he shall be the more absent, he shall exercise hospitality for at least two months every year: and that proviso being evidently founded on this canon; every pluralist, who doth not observe it, is punishable by ecclesiastical censures. Gibs. 911.

Not more than thirty miles distant] Heretofore, it was usual to obtain licenses from the king, to take two benefices beyond the distance of thirty miles, by way of dispensation with this canon; and in such cases we find this clause in the faculties granted by the archbishop, "The king's license for distance beyond thirty miles having been first granted to you," or the like; by reason of which license and clause, they have been usually called royal dispensations. But none of these (as it seemeth) have been granted since the Revolution; it having been then set forth in the declaration of rights, 1 W. Sess. 2. c. 2. that the power of suspending laws or the execution of laws, by regal authority with

out consent of parliament, is illegal; and with respect to acts of parliament in particular, it is enacted by that statute, that no dispensation by non obstante of any statute shall be allowed, unless the same shall be specially provided for in such statute. Gibs. 911.

Thirty miles.] H. 15 G. 3. King v. Bp. of Litchfield and Clive. [106] In the common pleas: In a quare impedit, on the presentation to the rectory of Adderley St. Peter in the county of Salop, being a benefice of above 87. value in the king's books; the declaration states, that Clive, being incumbent of Adderley, had accepted the vicarage of Clun, at more than thirty miles distance from Adderley, whereby the latter became void. Clive pleads a dispensation under the great seal, and denies that the livings are more than 30 miles distant. And upon that, issue is joined. On the trial, it was proved, by an actual admeasurement, along the turnpike road, that the distance from church to church was 48 miles, from parish to parish 43 miles; that the direct horizontal distance from church to church was 42 miles, from parish to parish 38 miles: But that by computation in the country the two livings were but 29 miles distant, and this was the usual method of computing distances upon such dispensations. Of which opinion was the judge who tried the cause and a special jury; who found a verdict for the defendant. It was moved for a new trial, alleging that the measured distance was the only one the law could take notice of: And the statute of 35 Eliz. c. 6. was cited, wherein a mile is declared to contain 8 furlongs, each furlong 40 poles, and each pole 16 feet and an half. On shewing cause against a new trial, it was argued, that the distance of the parishes is a matter merely regulated by the canons of the church, which may be directory in such cases to the archbishop, but is not taken notice of in the statute of dispensations, nor ever called in question in the king's temporal courts: Therefore the issue is immaterial. But if material, the ecclesiastical laws must be the rule in this case, and there the uniform practice has been to go by computed miles. And the court were clearly of opinion, that by the temporal law, the distance of the churches is immaterial; and they discharged the rule for a new trial. Black. Rep. 968.

N.B. In many parts of England, as also in Scotland, the computed miles most commonly run in the proportion of about two computed to three measured miles. What has been the original of the difference, seems difficult to ascertain.

[It has been remarked, that in many parts of the country the computed miles are long or short, in proportion to the difficulty or ease of travelling the road.]

That he have under him, in the benefice where he doth not reside, a preacher lawfully allowed] In pursuance of this canon (and not

Manner of obtaining a dispensa tion,

of any thing in the statute), a clause to the like purpose is inserted in the faculty or dispensation, Gibs. 911.

And it is further provided by Canon 47. that whosoever hath two benefices, shall maintain a preacher licenced, in the benefice where he doth not reside; except he preach himself at both of them usually.

5. The method which a presentee must pursue in order to obtain a dispensation, is as followeth :

He must obtain of the bishop in whose diocese the livings are, two certificates of the values in the king's books, and the reputed values and distance of such livings; one certificate for the archbishop, and the other for the lord chancellor. And if the livings lie in two dioceses; then two certificates, as aforesaid, are to be obtained from each bishop, each certifying the value in the king's books, and the reputed value of the living in his own diocese; and both of them the reputed distance of the two livings. Which certificates may be in this form:

"To the most reverend father in God, Thomas, by divine providence lord archbishop of Canterbury, primate of all England, and metropolitan :

"Whereas A. B. clerk, master of arts, vicar of C. in the county of D. and in my diocese of E. is presented to the rectory of F. in the county and diocese aforesaid: These are therefore to certify your grace, that the said vicarage of C., is valued in the king's books at is of the reputed yearly value of That the said rectory of F., is valued in the king's books at is of the reputed yearly value of And that they miles. Witness my

are distant from each other about

hand the

day of

The like to the lord high chancellor of Great Britain. He must also exhibit to the archbishop his presentation to the second living.

And also bring with him two papers of testimonials from the neighbouring clergy, concerning his behaviour and conversation; one for the archbishop, and the other for the lord chancellor.

The form of which testimonials may be thus:

"To the most reverend father in God, Thomas, by divine providence, lord archbishop of Canterbury, primate of all England, and metropolitan :

"We whose names and seals are hereunto subscribed and set, do humbly certify your grace, that we have personally known the life and behaviour of A. B. clerk, master of arts, vicar of C. in the county of D. and diocese of E. for the space of three years [108] now last past; that he hath, during the said time, been of good and honest life and conversation, a faithful and loyal subject to his majesty king George the third, and hath not (so far as we know) held, written, or taught any thing, but what the church of

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