CHA P. XIV.

of RESIDENCE.

"HE 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 fue for it. Stat. 21 Hen. VIII. c. 13.

But Chaplains to the King, or other Great "Perfons, mention'd Chap. X. are excufed from 'Refidence, whilft they attend thofe who re'tain them, by Stat. 21 Hen. VIII. and by Stat. 25 Hen. VIII. all the Twelve Judges, and the 'Atorney and Solicitor-General, may qualify one Chaplain, and excufe him from Refidence, and by 33 Hen. VIII. c. 28. the Chancellor of the Dutchy of Lancaster, and Groom of the Stole, ' have the fame Privilege. But none of the Perfons mention'd in thefe two laft Acts can qualify 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 Impoffibility; that is, to refide upon the other, if not by the Words of the A&t, yet by equitable Conftruction, Watf. cap. 37. p. 284.

Alfo he that has a

Dignity, and Benefice, by refiding upon one, 'is excus'd from Refidence 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 refide in the Cathedral, and be abfent from the Parish-Church. Watf. Ibid. 284.

He that is, without Fraud, under Confinement for Debt, or removes for his Health, by the Advice of his Phyficians, has been adjudged free from the Penalties of this A&t. Godol. c. 28. Sect. 9.

9

He that is employ'd in the King's Service, Edw. II. or is under an Injunction from the Lord Chancellor to attend a Suit, 21 H. VIIIis not punishable for Non-refidence.

Heads, and Profeffors in the Univerfity, and Clergymen under forty Years of Age, refiding there, and hearing the Lectures, and doing Exercife in Perfon, are exempt from the Pe 'nalties of 21 Hen. VIII. See 28 Hen. VIII.

It has been adjudged, that Refidence upon a Prebend, faves a Man from Refidence on his Cures, if he has any. Watf. c. 37. p. 284.

Yet he who has two Benefices, and refides for the most part upon one, is obliged by the Words of his Difpenfation to refide fixty Days in the Year on that Benefice, from which he is abfent for the most part, and preach Thirteen Sermons, Bc. which is what the Canon-Law requires of him, fays Watf. Ibid. 285.

He that is abfent from his Benefice with Cure, above eighty Days in the Year, vacates any Leafe, or other Bond, or Covenant made, whereby be lets out his Benefice, or any part of it, and forfeits a Years Profit of his Benefice; and therefore the Bishop is, in this Cafe, bound to fequefter the Living, and distribute the Pro

fits among the Poor of the Parish; if not, the Parishioners may withhold their Tythes, 13 Eliz. 20. 18 Eliz. II.

But it has been adjudg'd, that he who upon all Occafions reforts to his Parish, and ferves the Cure thereof duly, tho' he does not dwell in the fame Parish, faves himfelf from the Penalties of thefe laft Acts of Eliz. Watf. c. 43. p. 360.

But nothing is fufficient Refidence by the 21 Hen. VIII. but dwelling in the Parfonage or Vicarage-Houfe; if there be no Houfe, then he is thought excufed from fuch Refidence. Godol. c. 28. Sect. 9.

Whether the Non-Refidence by the Statute of Eliz. be to be computed all at one time, or at feveral times in the fame Year, have been varioufly judged. See Watf.c. 43. p. 360.

Thefe Statutes of Eliz. were intended to preyent corrupt Bargains between Patron and Clerk. It being, it feems, then a Practice for Patrons to get fome unworthy Clergyman to take Inftitution to vacant Benefices in their Gift, upon Condition of having Leafes of thofe Benefices, made to themselves at very low Rates, by which means thefe Patrons fecured the main of the Benefices to themfelves, and got them ferved at any Rate, by Stipendiary Curates, while the Incumbents were Non-refident, and making their Fortunes elfewhere: So that the Statute was not primarily defign'd again ft Non-refidence, but against fuch Non-refidents as, by corrupt Bargains and Leafes, made themselves Tools to difhonourable Patrons, and he only offends against this Statute, who is Non-refident, and yet ut the fame time Leafes out his Benefice.

But,

But, by thefe Statutes, he who is legally Incumbent in two Benefices, is permitted to lett one of them, (viz. that one, in which be fhall not be most ordinary refident) to his Curate only.

Leafes to Curates.

In making a Lease to the Curate, or any other Perfon, let the Incumbent take care to have thefe Words, or fuch like, inferted, after having mention'd the Term of Years, viz. If he do fo long live, and fhall fo long continue Parfon, or Vicar. For if fuch Leafe be made for Term of Years, without fuch Condition, the Leaffee may recover Damages for not enjoining his Term, in cafe of Death or Refignation, before that Term expires.

For here it is to be obferv'd, that a Parfen, or Vicar, can make no Leafe to bind his Succeffor, without Confent of Patron and Ordinary.

And even by Confent of them, he can only Leafe fuch Parts of his Benefice as have most commonly been letten in times paft, by Stat. 32. Hen. VIII. c. 28.

And farther: The Curate who takes a Benefice to Leafe, 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 fo his Leafe is null. And farther, the Incumbent is liable to the Penalties of the A&t, because he lets out his Benefice to one that is not really a Curate.

And that fuch Leafe may remain in Force, the Curate must keep ftri&t Réfidence, without ab

fenting

fenting himself forty Days in the Year, as has been faid in Chap. 9.

As to Refidence and all other Matters, the Vi car is by Statute Law, upon the fame foot with the Parfon; The Statute of Pluralities, does no more make two Vicarages incompatible, than two Parfonages; and the Statutes that require Refidence, make no difference betwixt the one and the other; but both Vicar and Parfon are fubject to the fame Penalties, if they be wilfully Non-refident; and that which excufes the Parfon from Non-refidence, excufes the Vicar too. The Bifhop, by his Difpenfation, can fave neither Vicar nor Parfon from the Penalties of the Statute Law in point of Refidence; and he can by the fame Difpenfation fave both of them equally from the Cenfures 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 exactly obferved, as Lyndwood owns, L. 1. Tit. Gloff. Eorum vices. However, by long practice, 'tis now as allowable for a Vicar to have a Curate as a Rector.

In one thing, indeed, there is a difference, which is, that the Vicar is fworn to Refidence, the Rector is not; but this Oath is with a Condition, viz. nifi aliter difpenfatum fuerit; fo that if the Vicar be difpenfed with, he is, in his refpect too, upon the level with the Parfon.

A Man is difpenfed 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 ConfciLace, in relation to the Oath, by the Bishop's