A church dictionary

by Walter Farquhar Hook

By the 33 Hen. VIII. c. 28. Whereas by the act of the 21 Hen. VIII. c. 13, it was ordained, that certain honourable persons, and other of the king’s counsellors and officers, as well spiritual as temporal, should and might have chaplains beneficed with cure, to serve and attend upon them in their houses, which chaplains shall not incur the danger of any penalty or forfeiture made or declared in the said act for non-residence upon their said benefices; in which act no provision is made for any of the head officers of the king’s courts of the duchy of Lancaster, the courts of augmentations of the revenues of the Crown, the first-fruits and tenths, the master of his Majesty’s wards and liveries, the general surveyors of his lands, and other his Majesty’s court: It is therefore enacted, that the chancellor of the said court of the duchy of Lancaster, the chancellor of the court of augmentations, the chancellor of the court of first-fruits and tenths, the master of his Majesty’s wards and liveries, and every of the king’s general surveyors of his lands, the treasurer of his chamber, and the groom of the stole, and every of them, shall and may retain in his house, or attendant unto his person, one chaplain having one benefice with cure of souls, which may be absent from the said benefice, and non-resident upon the same; the said statute made in the said twenty-first year of his Majesty’s reign, or any other statute, act, or ordinance to the contrary notwithstanding.

Provided always, that every of the said chaplains so being beneficed as aforesaid, and dwelling with any the officers aforenamed, shall repair twice a year at the least to his said benefice and cure, and there abide for eight days at every such time at the least, to visit and instruct his said cure; on pain of forty shillings for every time so failing, half to the king, and half to him that will sue for the same in any of the king’s courts of record, in which suit no essoin, protection, or wager of law shall be allowed.

And here the question comes to be reconsidered, How far these statutes, taken together, do supersede the canon law, so as to take away the power which the ordinary had before, of enjoining residence to the clergy of his diocese? 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 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 Hen. VIII. c. 13. But it is the power of dispensation in the two former cases which is intended to be taken away, namely, by the bishop and by the pope; and by the said act residence is enjoined 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 enforce 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 for their non-residence. Unto this it is answered, that the intention of the act was not to take away any power which the bishop had of enjoining 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 enjoin 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 anything 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 aforegoing 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 non-residence, or may be absent from their benefices, and not resident upon the same; but only this, that they may be absent or non-resident 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.

Peccham. We do decree, that rectors who do not make personal residence in their churches, and who have no vicars, shall exhibit the grace of hospitality by their stewards according to 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.

By the 13 Eliz. c. 20. That the livings appointed for ecclesiastical ministers may not by corrupt and indirect dealings be transferred to other uses, it is enacted, that no lease to be made of any benefice or ecclesiastical promotion with cure, or any part thereof, and not being impropriated, shall endure any longer than while the lessor shall be ordinarily resident, and serving the cure of such benefice, without absence, above fourscore days in any one year; but every such lease, immediately upon such absence, shall cease and be void; and the incumbent so offending shall for the same lose one year’s profit of his said benefice, to be distributed by the ordinary among the poor of the parish: and all chargings of such benefices with cure with any pension, or with any profit out of the same to be yielded or taken, other than rents reserved upon leases, shall be void. (S. 1.)

Provided, that every parson, by the laws of this realm allowed to have two benefices, may demise the one of them, upon which he shall not then be most ordinarily resident, to his curate only that shall serve the cure for him; but such lease shall endure no longer than during such curate’s residence without absence above forty days in any one year. (S. 2.)

H. 1724. Mills and Etheridge. Bill by the lessee of Matthew Hawes, clerk, setting forth his lease dated Feb. 4, 1723, of the tithes for 1724 and 1725, in the parish of Simpson, in the county of Buckingham. The defendant pleaded, that it appears by the plaintiff’s bill, that his lease was dated Feb. 4, 1723; then pleads the statute of the 13 Eliz. c. 20, and avers, that Matthew Hawes the lessor was absent from his benefice eighty days and more in one year since the lease, and before the filing of the bill; that the church of Simpson is not impropriate; and that it is a benefice or ecclesiastical promotion with cure; and therefore, by such non-residence, and by virtue of the said act, that the lease was void. And the plea was allowed: and it was determined that, there is no necessity to aver that the absence was voluntary, (for if it was otherwise, it lay upon the plaintiff to show it,) or to aver that the absence was eighty days together.—Bunb. 210.

The same plea came on E., 1726, in the case of Quilter and Lowndes, and allowed by the whole court.—Bunb. 211.

But, query, says the reporter, if this is a good plea if the rector and lessee join; for by non-residence before sentence he only forfeits his lease and rent, not his tithes.—Atkinson and Prodgers v. Peasley, Bunb. 211.

Bishops are not punishable by the statute of the 21 Hen. VIII. for non-residence upon their bishoprics; but although an archbishop or bishop be not tied to be resident upon his bishopric by the statute, yet they are thereto obliged by the ecclesiastical law, and may be compelled to keep residence by ecclesiastical censures.—Watson, c. 37.