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CH A P. XIV.
‘ E that is wilfully Absent from his Benefice
for one Month together, or two Months " in the whole Year, tho at different Times,
forfeits Ten Pounds, the one half to the Crown, (the other to him that will sue for it. Stat. 6 21 Hen. VIII. C. 13.
But Chaplains to the King, or other Great Persons, mention'd Chap. X. are excufed from Residence, whilst they attend those who re"tain them, by Stat. 21 Hen. VIII. and by Stat. 625 Hen.Vill. all the Twelve Judges, and the
Atorney and Solicitor-General, may qualify
one Chaplain, and excufe him from Residence, 6 and by 33 Hen.VIII. c. 28.the Chancellor of the • Dutchy of Lancaster, and Groom of the Stole, have the same Privilege. But none of the Per. fons mention'd in thefe two last Acts can qua. lify a Chaplain to hold a Plurality.
And he who being qualify'd by 21 H.VIII. to hold two Benefices, refides upon one of them, is held excus'd from what is an Impossibility; that is, to reside upon the other, if not by the Words of the Act, yet by equitable Construction, Watf. cap. 37. p. 284. Calso he that has a Dignity, and Benefice, by residing upon ones. is excus'd from Residence on the other, by the Words of the Statute; but then a Gospeller, or
Vicar-Choral, is not reputed to be free from the Penalties of the Statute, if he reside in the Cathedral, and be absent from the Parish_Church. Watf. Ibid. 284.
He that is, without Fraud, under Confinement for Debt, or removes for his Health, by the Ad. vice of his Phyficians, has been adjudged free from the Penalties of this A&. Godol. c. 28.
He that is employd in the King's Service, 69 Edw. II. or is under an Injunction from the Lord Chancellor to attend a Suit, 21 H. VIII. is not punishable for Non-residence.
Heads, and Professors in the University, and • Clergy men under forty Years of age, residing
there, and hearing the Lectures, and doing • Exercise in Person, are exempt from the Pe. nalties of 21 Hen. VIII. See 28 Hen. VIII.
It has been adjudged, that Residence upon a Prebend, faves a Man from Residence on his Cures, if he has any. Watf. c. 37. p. 284.
Yet he who has two Benefices, and resides for the most part upon one, is obliged by the Words of his Dispensation to resiche fixty Days in the Year on that Benefice, from which be is absent for the most part, and preach Thirteen Sermons, &c. which is what the Canon-Law requires of him, says Watf. Ibid. 285.
• He that is absent from his Benefice with Cure, above eighty Days in the Year, vacates any Leafe, or other Bond, or Covenant made, whereby be lets out bis Benefice, or any part of it, and forfeits a Years Profit of bis Benefice; and therefore the Bishop is, in this case, bound to sequefter the Living, and distribute the Profits among the Poor of the Parish; if not, tbe “Perishioners may vithbold their Tyibes, 13 Eliz. 20. 18 Eliz. II.
But it has been adjudg’d, that he who upon all Occasions resorts to his Parish, and serves the Cure thereof duly, tho he does not dwell in the fame Parish, faves himself from the Penalties of these last Acts of Eliz. Watf. c. 43. P. 360.
But nothing is sufficient Residence by the :21 Hen. VIII. but dwelling in the Parfonage or Vicarage-House; if there be no House, then he is thought excused from such Residence. Godol. c. 28. Sect. 9.
Whether the Non-Refidence by the Statute of Eliz. be to be computed all at one time, or at several times in the fame Year, have been variously judged. See Watf.c. 43. p. 360.
Thefe Statutes of Eliz. were intended to preyent corrupt Bargains between Patron and Clerk. It being, it seems, then a Practice for Patrons to get some unworthy Clergyman to take Inftitution to vacant Benefices in their Gift, upon Condition of having Leases of those Benefices, made to themselves at very low Rates, by which means these Patrons fecured the main of the Be. nefices to themselves, and got them ferved at any Rate, by Stipendiary Curates, while the Incumbents were Non-resident, and making their Fortunes elsewhere : So that the Statute was not primarily design'd against Non-resi. dence, but against such Non-residents as, by cor. rupt Bargains and Leases, made themselves Tools to dishonourable Patrons, and be only offends against this Statute, who is Non-resident, and yet y the same time Leafes out bis Benefice.
But, by these Statutes, he who is legally Incumbent in two Benefices, is permitted to lett one of them, (viz. tbat one, in wbicb be shall not be most ordinary resident) to bis Curate only.
Leases to Curates.
In making a Lease to the Curate, or any other Person, let the Incumbent take care to have these Words, or such like, inserted, after having mention's the Term of Years, viz. If he do to long live, and Jhall so long continue Parfon, or Vicar. For if such Lease be made for Term of Years, without such Condition, the Leafsee may recover Damages for not enjoining his Term, in case of Death or Resignation, before that Term expires.
For here it is to be observ'd, that a Parfon, or -Vicar, can make no Lease to bind his Successor, without Consent of Patron and Ordinary.
And even by Consent of them, he can only Lease such Parts of his Benefice as bave most commonly been letten in times past, by Stat. 32. Hen. VIII. 28.
And farther : The Curate who takes a Benesice to Lease, ought by all means to be legally licensed by the Bishop himself, and to qualify himself according to Law: If he does not, he is no Curate in the Eye of the Law, and so his Lease is null. And farther, the Incumbent is liable to the Penalties of the Act, because he lets out his Benefice to one that is not really a Curate.
And that such Lease may remain in Force, the Curate must keep ftria Residence, without ab
senting himself forty Days in the Year, as has been said in Cbap.9.
As to Residence and all other Matters, the Vi. car is by Statute Law, upon the same foot with the Parson; The Statute of Pluralities, does no more make two Vicarages incompatible, than two Parsonages; and the Statutes that require Residence, make no difference betwixt the one and the other ; but both Vicar and Parfon are subject to the same Penalties, if they be wilfully Non-refident ; and that which excuses the Par. fon froin Non-residence, excuses the Vicar too.
The Bishop, by his Dispensation, can save nei. ther Vicar nor Parfon from the Penalties of the Statute Law in point of Residence; and he can by the same Dilpenfation save both of them equally from the Censures of the Spiritual Court.
There was indeed an old Saying, Vicarius non babet Vicarium ; the Vicar has no Vicar, or Subfitute ; which yet never was exa&ly observed, as Lyndwood owns, L. 1. Tit. Glof. Eorum vices. However, by long practice, 'tis now as allowable for a Vicár to have a Curate as a Rector.
In one thing, indeed, there is a difference, which is, that the Vicar is sworn to Residence, the Rector is not ; but this Oath is with a Con dition, viz. nisi aliter difpenfatum fuerit ; so that if the Vicar be dispensed with, he is, in this respect too, upon the level with the Parfon.
A Man is dispensed with, as to the Temporal Courts, by Statute Law; as to the Spiritual Courts, either by the Statute Law, or by the Bishop's Faculty under Seal; and as to Consci. nice, in relation to the Oath, by the Bishop's