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A TABLE

OF THE

ABBREVIATIONS OF THE AUTHORITIES

REFERRED TO

IN THE NOTES.

Add. Addam's Reports.

Ambl.

Ambler's Reports.

Anstr. Anstruther's Reports.

Atk. Atkyns's Reports.

Barn. and Cress. Barnewall and Cresswell's Reports.

Bing. Bingham's Reports.

Bla. Com.

Blackstone's Commentaries.

Bla. Rep. Blackstone's Reports.

Bos. and Pull.

Bosanquet and Puller's Reports.

Bro. Cha. Ca.

Brown's Chancery Cases.

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Dy. Dyer's Reports.

East. East's Reports.

Gibs.

Gwill.

Gibson's Codex Juris Ecclesiastici.

Gwillim's Tithe Cases.

Lynd. Lynderwode's Provincial.

Mad. Rep. Maddock's Reports.

Maule and Selw. Maule and Selwyn's Reports.

Peake's Ev. Peake's Compendium of the Law of Evidence.

a

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Phillimore's Eccl. Rep. Phillimore's Ecclesiastical Reports.
Phill. Ev. Phillipps's Treatise on the Law of Evidence.
Salk. Salkeold's Reports.

Spelm. Spelman's Concilia.

Term Rep. Term Reports.
Ves. Vesey's Reports.

THE DIGEST

A

DIGEST

OF

THE STATUTES.

PART I. CLASS I.

a Stat. 57 GEO. III. Cap. 99.

Statutes relating to Spiritual Persons, holding Farms or trading; Residence; the Appointment and Salaries of Curates; and of Chaplains of Gaols, and Houses of Correction.

THIS statute by its first section repeals the several provisions of the Acts of Parliament, previously in force, relat

This statute embraces three subjects of importance to the Clergy: 1. the taking of land for occupation, and trading, or dealing, by the Clergy: 2. the residence of Incumbents: 3. the appointment and salary of Curates. These subjects have been from time to time distinct objects of legislation, but by the present Act the former statutes relating to them have been repealed, and their various materials, with some alterations, have been consolidated.

It clearly appears, that before the statute of the 21st of Henry the Eighth, c. 13. some restraints had been at different times imposed by ecclesiastical authority upon the Clergy, with respect to their exercising trades, or other secular employments*, but the statute of the 21st year of Henry the Eighth, founded upon a bill, originated by the Commons, at a period when considerable jealousy existed between the Clergy and Laity, and when the connection between this kingdom and the pope was much weakened†, appears to have imposed stricter regulations upon the subject of farming and trading by the Clergy than they had previously been subject to. Spiritual persons, of all degrees and denominations, were prohibited from taking any lands to farm under a very heavy penalty, one half of which was payable to the King, and the other to the informers; and those who held any such farms, were within a stated time to alienate them under a penalty, to be paid in a similar manner, and all leases made to the Clergy for such a purpose were to be void. The Act, however, was subject to some exceptions, amongst which was a permission to such of the Clergy as had not sufficient glebe, to occupy land, and to buy and sell corn and cattle for the maintenance of their households, but not for lucre or advantage. This statute also prohibited the Clergy in very definite language from buying to sell again any kind of cattle, corn, or merchandise, unless it was for the use of themselves or their households, and by a distinct section, restrained them from keeping tan-houses and brew

Lynd. 268. 1 Gibs. Cod. 180. Decret. Ep. of Alexander. 2 Spclm. 105. + 1 Strype 75. Hume c. 30.

b

No. 1.

ing to the same subjects, and next proceeds to restrict every spiritual person holding any dignity, benefice, curacy, or

houses, a clause for which it is difficult at the present day to see the expediency, but upon the supposition that those particular trades were at that period commonly exercised by the Clergy; these prohibitions were all fortified by very heavy penalties, one half payable to the King, and the other half to the informer.

The same statute also enjoined the residence of all beneficed Clergymen, subject to some exceptions upon their respective benefices; and if they were wilfully absent for the space of one month together, or for two months, to be accounted at several times in one year, they were subjected to a penalty of 101. for each default, to be recovered as the former penalties: this statute was followed by another of the 28th of Henry the Eighth, c. 13. the effect of which was to narrow one of the exemptions from residence, contained in the former statute, to students residing at the universities for purposes of study, not exceeding the age of forty, which has since been reduced to thirty

years.

The language of the statute of the 21st of Henry the Eighth was so indistinct in many particulars, but more especially in the clause respecting residence, and so many circumstances were involved, in the endeavour to comply with the exceptions of the Act, as to the occupation of farms, or engaging in any transactions of buying and selling, that it was not easy for any Clergyman, however correct his intention, to be exempt from the danger of information, and so heavy were the penalties, which, upon the construction of the section relating to residence, the informer was enabled to recover, that the chance of gain to be obtained by him was more than commensurate with the danger of failure in his proceedings, even where the case was doubtful. Hence numerous prosecutions had been at different times instituted against the Clergy, and more especially on the ground of nonresidence, at the suit of informers, and particularly at a period shortly before the passing of the Acts of the 41st Geo. III. c. 102. and 42. Geo. III. c. 30. 86. The object of the last mentioned statutes was to stay the proceedings which had been already instituted against the Clergy, with a view to some permanent regulations upon the subject, then in the contemplation of the legislature; these regulations were afterwards embodied in the statute of the 43d year of Geo. III. c. 84. This statute comprised many of the provisions contained in that, to which this note is appended. It stayed proceedings already instituted, and the Clergyman was enabled, by consent of the Bishop, if he had not sufficient glebe, to take and occupy a farm for the accommodation of his family; the clause of the statute of Henry the Eighth, imposing penalties for nonresidence, was repealed, and a new scale of penalties was imposed. The Bishops were empowered to proceed against nonresidents, by monition and sequestration, the cases of exemptions were stated, and the cases proper to obtain licences of nonresidence were enumerated. This statute was amended in some trifling particulars by an Act of the same sessions, c. 109; and a subsequent statute of the 54th of Geo. III. c. 175. introduced other important regulations upon the subject of residence, also adopted in the present statute. It imposed a penalty upon any Clergyman entitled to exemption from residence who neglected to notify to the Bishop, instead of leaving him open upon such neglect to information, and it enlarged the description of legal residence. The materials of these two statutes have been comprehended in the present, but with some alterations and additions, as well as retrenchments. Some of the prohibitions, as well as permissions of the statute of Henry the Eighth, and the subsequent statutes, have been omitted as unnecessary. A Clergyman may take to farm lands, to the extent of eighty acres, without the consent of the Bishop; and an informer, in his action for penalties, is bound to a much stricter course of conducting his proceedings than he had been.

It does not appear that the Acts of the legislature have imposed upon the

or

lectureship, from taking to farm for his own occupation any quantity of land exceeding eighty acres, without the permis- Clergymen sion of the Bishop; which permission must specify the num- occupying ber of years, not to exceed seven, for which it is given and trading. the statute inflicts a yearly penalty of forty shillings for each acre, occupied beyond the quantity of eighty acres, recoverable by any person who may sue for the same b.

By the third section, no spiritual person holding any dignity, &c. shall engage in any trade or dealing, upon pain of forfeiting the value of the goods, &c. bargained and bought to sell again; and every bargain, or contract made in such trade or dealing shall be void, one half of the forfeiture shall go to the King, and the other half to him that

b s. 2. p. 97.

Clergy any regulations of a severer nature in respect to residence than they were subjected to by the canon law before the statute of Henry the Eighth; since the punishment of nonresidence by that law was by sequestration, followed by deprivation*; yet from the complaints preferred at different times by the commons† to Parliament, respecting the nonresidence of the Clergy, it may be conjectured that the law was not often exercised, or that dispensations were easily to be obtained‡.

The part of the statute which relates to the appointment and salary of Curates embraces the substance of several statutes which have preceded it. Although stipendiary Curates are adverted to§, and their salaries were at different times fixed by ecclesiastical constitutions, yet it would appear, from the preamble of the first Act of the legislature on their behalf, stat. 12 Ann. c. 12. that the parishes supplied by Curates, and the personal wants and comforts of the Curate, had been much neglected. This statute empowered the Bishop to appoint a stipend to the Curate, having regard to the value of the living, of not more than 50%. a year, nor less than 307., with a power to sequester the profits of the benefice, if it was not paid. This statute was followed by that of the 36th of Geo. III. c. 83. which empowered the Bishop to appoint to the Curate a stipend, to the extent of 751. a year, and in certain cases the use of the parsonage-house. This statute was followed by that of the 53d of Geo. III. c. 149. which introduced several provisions, in addition to the former, increasing the amount of the stipends to be paid to Curates, and adapting them with reference to the amount of the living and the extent of the population, and making various regulations respecting the residence and licencing of Curates, and also containing further regulations, as to licences of nonresidence to be granted to Incumbents. This statute, as well as those which preceded it, have been in substance embraced by the present statute, and are, as far as relates to the subject, repealed by it.

Athon. 36. 2 Gibs. 827.

+ Prynne's Abridgm. of Records 8 Hen. 4. No. 113. 9 Hen. 4. No. 70. 4 Hen. 6. No. 31. 38.

Degge, part 1. ch. 7.

Constitution of Archbishop Winchelsea, Lynd. 70.

Lynd. 240. Archbishop Islip, a predecessor of Archbishop Sudbury, allowed six marks, Sudbury allowed eight marks, or four marks and the board of the Curate. Temp. Rich. 2. a considerable allowance, with reference to the value of livings at that period.

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