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quent proceedings on such action or information, shall be received as evidence of the annual value of the benefice, for the purposes of this act, but without prejudice to the admissibility or effect of other evidence respecting the real value thereof.
By $ 45. A licence for non-residence, and other licences granted under this act, may be pleaded in bar of any action for penalties under this act; and if after such plea pleaded, plaintiff discontinues, defendant shall have double costs, with usual remedy to recover same; and the court or a judge thereof may, on application, order that plaintiff shall give security for payment of such costs, and that proceedings shall be staid till such security is given as the court, &c. think fit. (5)
Provided that if at the time of filing any monition requiring any spiritual person to reside on his benefice, or to recover the penalties for past non-residence, no notice of action for any penalty shall have been already given as above, then no such action or information shall afterwards be brought for any penalty incurred before monition issued, or during proceedings had under it; and if any such action, &c. is so brought, defendant may plead in bar a monition issued for the same benefice; and unless on application to court the same is dispensed with, shall on pleading such matter file an affidavit, stating the period specified in such monition, and that he believes the bishop is proceeding thereon to make it effectual, otherwise the plea shall be bad. Š 46.
No penalty or costs incurred by any spiritual person for nonresidence shall be levied by execution on the body whilst they hold the same or another benefice, out of the profits of which it can be levied by sequestration within three years; and in case the body is so taken, the court or judge thereof shall, on application made, discharge the party, if it appears to his satisfaction that the penalty and costs can be so levied. $ 47. As to Residence on Peculiars, see Beculiars.
General provisions of 57 Geo. 3. c. 99. In all cases where proceedings under this act are directed by monition and sequestration, such monition shall issue under the hand and seal of the bishop; and being duly served, shall be returned with a certificate of service into the registry of his consistorial court; whereupon the party monished may shew cause by affidavit or otherwise, against the sequestration issuing, and unless good cause is shewn to the contrary, sequestration shall issue under seal of such consistorial court in the usual form. $75.
(5) Though a licence for non-residence granted under 54 G. 3. c. 54. (now Exp.) did not cover the whole of the period for which penalties were sought to be recovered, yet if there be not sufficient time left uncovered to subject the incumbent to a penalty, the court of C. P. will interfere to stay the proceedings. Wynn v. Kay, 1 Marsh. 387. 5 Taunt. 843. S.C. and see 308 a, note (8).
By $ 76. The bishop of any diocese in which any spiritual person shall hold any dignity or benefice, or serve as stipendiary curate, may recover any penalty incurred under this act in a summary way, by monition and sequestration issued as in g 26., with like powers of remission and repayment as in case of penalties for non-residence; provided the party against whom such proceedings are had by the bishop, shall not be subject to any action at law, by any informer or other person, for recovery of any penalty for the same offence for which such proceeding has been so had by the bishop.
Any fees or costs incurred or directed to be paid by any spiritual person under this act, and remaining unpaid for twenty-one days after demand in writing, left at the usual or last place of abode of the spiritual person liable to payment thereof, may be recovered by monition and sequestration to be issued as by this act directed. $77.
No commission issued by any bishop to any commissary to administer the oaths required to be taken by any curate, for the purpose of any licence granted under this act, shall be subject to stamp duty. $ 79.
Nothing herein shall affect his majesty's present prerogative in granting dispensations for non-residence on benefices. Ÿ 80.
No parsonage that hath a vicar endowed, or a perpetual curate, and without cure of souls, shall be deemed a benefice within this act. $81.
No archbishop or bishop having any benefice shall be liable to penalties for non-residence thereon, provided that if he hold any benefice in commendam with his archbishopric or bishopric, he shall appoint a resident curate under this act. 82.
This act shall not affect any right, powers, or authority already vested in any archbishop or bishop under any statute, canon, usage, or otherwise howsoever. § 83. Or any act or other law for due celebration of divine service in any church or chapel, or for discharge of any other duty of any rector, vicar, or person
holding any benefice by himself or his curate. $ 84.] Hospitality 4. Peccham. We do decree, that rectors who do not make to be kept personal residence in their churches, and who have no vicars, shall by non-re
-ree exhibit the grace of hospitality by their stewards according to sidents.
the ability of the church; so that at least the extreme necessity of the poor parishioners be relieved; and they who come there, and in their passage preach the word of God, may receive necessary sustenance, that the churches be not justly forsaken of the preachers through the violence of want; for the workman is worthy of his meat, and no man is obliged to warfare at his own cost.
Who do not make personal residence] That is, although they be licensed to non-residence by their bishops or others to whom it appertaineth. For if they be non-resident without licence, they are not only bound to the observance of this constitution, but otherwise may be proceeded against according to law. Lind. 132.
And who have no vicars] This intimates, that they who have vicars in their benefices, are excused from personal residence: And this may be well admitted, where the parish church is annexed to a prebend or dignity; for then the principal is excused by the vicar from personal residence; and the reason is, because he is bound to reside in his greater benefice. But this reason (said Lindwood) doth not hold, where in a church there is a rector and vicar, which church doth not depend on any other church; wherefore he who hath such church is not excused from residence by the vicar which he hath there : Nor doth it make against this, if it be alleged, that such rector hath not the cure of souls, but the vicar; for habitually, and in propriety, the cure of souls is in the principal rector; and in the vicar only, as to the exercise and effect thereof. Lind. 132.
Who come there, and in their passage preach the word of God] This constitution was made by Peccham, in favour of his own brethren the friars, who travelled under the pretence of preaching. Lindwood here bears hard upon them, for sauntering up and down in the parishes where they preached, and begging the people's alms after they had received what was sufficient at the parsonage-house. Johns. Pecch. Lind. 133.
Preach the word of God] That is, if they be licensed and lawfully sent to preach. Lind. 133.
[5. By 57 Geo. 3. c.99. 1. so much of 13 El. c. 20. and 14 El. Leases of c. 11. as related to leases of benefices and livings, was repealed. dents.
non-resi, See 13 El. c. 20. Leages.]
And here the question comes to be considered, How far these Residence statutes, [21 H. 8. c. 13. 25 H.8. c. 16. 28 H.8. c. 12. and 33 H. 8. 2
enforced by c. 28.] taken together, do supersede the canon law, so as to take canon law. away the power which the ordinary had before, of injoining residence to the clergy of his diocese on pain of ecclesiastical censures; and in case of obstinacy on the part of the incumbent, of proceeding to deprivation.(6) It seems to be clear, that before these statutes, the bishops of this realm had and exercised a power of calling their clergy to residence; but more frequently, they did not exert this power, which so far forth was to the clergy a virtual dispensation for non-residence. But this not exerting of their power was in them not always voluntary; for they were under the controlling influence of the pope, who granted dispensations of non-residence to as many as would purchase them, and disposed of abundance of ecclesiastical preferments to foreigners who never resided here at all. The king also, as appears, had a power to require the service of clergymen; and consequently
(6) Gibs. 887. See Deprivation, note.
in such case to dispense with them for non-residence upon their benefices. This power of the king is reserved to him by the aforesaid act of the 21 H. 8. c. 13. [§ 29.] But it is the power of
dispensation in the two former cases which is intended to be [ 309 ] taken away, namely, by the bishop, and by the pope; and by
the said act residence is injoined to the clergy under the penalty therein mentioned, notwithstanding any dispensation to the contrary from the court of Rome or elsewhere; with a proviso nevertheless, that the said act shall not extend nor be prejudicial to the chaplains and others therein specially excepted. It is argued, that this act being made to rectify what had been insufficient or ineffectual in the canon law, and inflicting a temporal penalty to inforce the obligation of residence, the parliament intended that the said act should be from thenceforth, if not the sole, yet the principal rule of proceeding in this particular; and consequently, that the persons excepted in the act need no other exemption than what is given to them by the act of their nonresidence. Unto this it is answered, that the intention of the act was not to take away any power which the bishop had of injoining residence, but the contrary; namely, it was to take away that power which the bishop or pope exercised of granting dispensations for non-residence, that is to say, the act left to them that power which was beneficial, and only took from them that which tended to the detriment of the church ; and consequently, that the bishop may injoin residence to the clergy as he might before, only he may not dispense with them as he did before for non-residence. And indeed, from any thing that appears upon the face of the act, the contrary supposition seemeth to bear somewhat hard against the rule which hath generally been adhered to in the construction of acts of parliament, that an act of parliament in the affirmative doth not take away the ecclesiastical jurisdiction, and that the same shall not be taken away in any act of parliament but by express words. It is therefore further urged, that the three subsequent acts do explain this act, and by the express words thereof do establish the foregoing interpretation. In the first of the three it is said, that the persons therein mentioned may retain one chaplain which may be absent from his benefice, and not resident upon the same ; in the second, it is said, that persons above forty years of age residing in the universities shall not be excused of their non-residence, and again that persons under forty years of age shall not enjoy the privilege of non-residence contained in the proviso of the said former act, unless they perform the common exercises there, and the like, which implies, that if they do this, they shall enjoy such privilege: and in the third, it is said, that the persons therein mentioned may retain one chaplain which may be absent from his benefice, and non-resident upon the same; and it is not to be supposed, that the parliament intended a greater privilege to the chaplains of the inferior officers mentioned in the said last act, than to the chaplains of the royal family and principal nobility mentioned in the first act. Unto this the most apposite answer seemeth to be, that it is not expressed absolutely in any of the said three acts, that the chaplains or others therein mentioned shall enjoy the privilege of nonresidence, or may be absent from their benefices, and not resident upon the same; but only this, that they may be absent or nonresident as aforesaid, the said statute made in the said twenty-first year, or any other statute or ordinance to the contrary notwithstanding. So that they are only exempted thereby from the restraints introduced by the statute law; but in other respects are left as they were before. — But concerning this, although it is a case likely enough to happen every day, there hath been no adjudication.
Bishops were not punishable by the statute of the 21 H. 8. for Residence non-residence upon their bishoprics (unless they were also arch- of bishops. deacons, deans, or other inferior dignitaries not excepted by that [ 313 ] statute by commendam; in which case they were, as such, punishable by that statute for non-residence (7)]: but although an archbishop or bishop be not tied to be resident upon his bishopric by the statutes; yet they are thereto obliged by the ecclesiastical law, and may be compelled to keep residence by ecclesiastical censures. Wats. c. 37. [Com. Dig. tit. Esglise, (N 4.)]
This, by a constitution of archbishop Langton : Bishops shall be careful to reside in their cathedrals, on some of the greater feasts, and at least in some part of Lent, as they shall see to be [ 314 ] expedient for the welfare of their souls. Lind. 130. [See tit. Bishops, III.]
And by a constitution of Otho : What is incumbent upon the venerable fathers the archbishops and bishops by their office to be done, their name of dignity, which is that of bishop (episcopus) or superintendant, evidently expresseth. For it properly concerns them (according to the gospel expression) to watch over their flock by night. And since they ought to be a pattern by which they who are subject to them ought to reform themselves, which cannot be done unless they show them an example: we exhort them in the Lord, and admonish them, that residing at their cathedral churches, they celebrate proper masses on the principal feast days, and in Lent, and in Advent. And they shall go about their dioceses at proper seasons, correcting and reforming the churches, consecrating, and sowing the word of life in the Lord's field. For the better performance of all which, they shall twice in the year, to wit, in Advent and in Lent, cause
(7) Gibs. 886. The stat. 57 G. 3. c. 99. imposes no new obligation of residence on them as bishops; and by $ 22. excuses them from the penalties of non-residence on any benefices held in commendam, on their appointing a resident curate under that act.