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the country: then their residence was co-equal in extent with the diocese.
After the division of dioceses into parishes, the bounds of this duty were contracted, and residence was confined to the limits of the parish, where the cure of souls is committed to the priest by the bishop: hence every non-resident rector or vicar is prima facie criminal as regards the laws of the church and of the realm, till be shows a legal dispensation to justify or excuse himself.
These dispensations create the whole difficulty of this case, and are therefore considered particularly.
That the obligation to residence may be dissolved in some cases, there is no doubt, as in that of mental or bodily infirmity; since residence itself is only valuable because it enables a man to perform his duty. But there are other dispensations introduced and admitted by law, which are supposed to be founded in a general consideration of the good of the church ; though many of them have outlived the reasons on which they were introduced: their pleas must be left to the conscience of individuals, as the bishop is bound by the rules of law.
Inquiry therefore is made; I. in what cases the dispensations are grantable, and by whom : II. on what conditions they are grantable.
The canon law has mentioned some cases, in which the bi- . shop may dispense with residence; and it supposes others, leaving them to his discretion.
1. It allows of a dispensation for such as abide in some approved university for the study of divinity or canon law: the limit of this dispensation, and the reason of it stated; also in what manner it is binding on the conscience of an incumbent. Introduced by the canon law, it was approved by the legislature; but having been abused, its privileges were confined to those that were under the age of forty years, by the 28th of Hen. VIII. cap. 13. Observations on this point.
2. The canon law allows the service of the bishop to be a sufficient license for non-residence; since the necessary care and business of a diocese require that the bishop should have the assistance of one or more discreet clergymen; and it is easier to find a proper curate to serve a parish, than a proper person to advise and assist the bishop. In this case therefore the good of the church is made the foundation of the dispensation. The statute has extended this exemption to other cases not expressed in the canon law; as to the chaplains of the nobility and great officers of the crown : reason of this, to encourage virtue and religion among those whose example must have great effect; so that here also the good of the church is intended ; and thence arises the restriction under which exemption is here granted : observations on this point.
3. The service of the church is another reason noticed by the canon law; as, for instance, attendance in convocation : this not mentioned by the statute, nor condemned by it; since he is not wilfully absent from his cure who is absent in obedience to the king's writ.
4. The service of the crown is, by the common law, a dispensation of residence, whilst a clerk is actually in the king's service; and only then does the statute exempt even the king's chaplains from the penalties. These are the principal cases in which non-residence is excused by the canon law, and the law of the realm; and it is manifest, from the reason of these cases, that a dispensation is granted by neither as a favor to any person; and that it is only to be justified, when the service of the church or commonwealth makes it reasonable.
This general observation on the cases for which the law has provided, will enable us to judge of those which are reserved for the discretion of the bishop.
5. The canon law admits the bishop to dispense with residence where there is justa et rationabilis causa. In all cases provided for by the law itself, this is the good either of
church or state ; and we may be sure the law never intended that the bishop should grant dispensations as personal favors but for similar reasons, or in cases of great necessity.
That the bishops anciently had and exercised this power in the church of England, is manifest from registers, and the authority of Lyndwood. But the great question is, how this matter now stands since the statute of the 21st Hen. VIII.
The enacting part of this statute requires that every archdeacon, dean, dignitary, parson, and vicar, be constantly resident in, at, and on his dignity or benefice; or in case of plurality, at least on one. Then follows the penalty for nonresidence; and in the next clause all dispensations contrary to the act are declared void.
Had the act stopped here, all dispensations of residence had been intirely taken away; but it goes on, and makes the exceptions already mentioned : besides which there is a provision for the king to give license for non-residence to his own chaplains ; but it is restrained to them alone.
If this act then has restrained this power in the crown, without doubt it has restrained it in all inferior ordinaries. But it must be observed that the act itself grants no dispensation to any person in any case; and therefore those who are exempted by the act from the penalties of it, cannot justify non-residence by pleading the act, but must justify it by a dispensation from the ordinary, and by showing that it is not contrary to the act. Observations on this point.
There is one case which ought to be mentioned : it is that of vicars, who are bound by oath to perpetual residence. In the form of the oath, provision is made for the bishop to dispense: now for any absence not exceeding a month at once, and two months in a year taken together, (which is the statutable allowance,) the bishop's dispensation to the vicar is effectual, as not being contrary to the statute. If the dispensation goes farther, it is certainly void, considered as a
dispensation for residence; but the particular obligation of the oath laid on by the canon may be dispensed with by the bishop, it being the condition implied in the oath; and no oath obliges farther than the meaning of it is understood by the imposer and taker of it.
With respect to this oath, there is a common opinion that the duty of residence is not the same in the case of a rector and a vicar; but if we consider the reason and nature of this case in theory, it is impossible to imagine what could incline the governors of the church to require less duty from the former than from the latter : this point enlarged on.
Neither is there any pretence for such difference from the ecclesiastical or temporal laws of this kingdom: all canons and all statutes relating to residence, affect all incumbents equally.
The mistake has arisen from a legatine constitution still in force, in consequence of which every vicar at his institution takes an oath of perpetual residence, which is not exacted from rectors.
But to argue that rectors are not obliged to perpetual resi. dence because vicars are obliged to it by oath, is a strange way of reasoning, and applied to any other case, would manifestly appear to be so. Instance given,
To clear up this matter, the origin of the oath is historically investigated; whence it appears to have been enjoined, not for the purpose of binding vicars to a stricter residence than rectors, but of preventing a great abuse of another kind; inas
i much as vicars thought themselves not at all obliged by the canons of residence, inasmuch as they had not benefices or titles in their churches, There are some cases which the law does not
and therefore has made no provision for them ; in which it is hard to know what the bishop may equitably require of the clergy,
and what they are strictly bound to perform. Thus some livings have no house or glebe, nor any convenient house within the district; whilst others have only a cottage so mean as to afford not any conveniences to the rector or his family. The question is, what is to be done in these cases ? The law does not bind to impossibilities; and therefore Lord Coke, in the sixth Report, says that the want of a house is an excuse for non-residence; for impotentia excusat legem. Whether this opinion be law, and how far the reason of it goes, will be considered.
Originally the bishop and his clergy lived together according to the rules laid down in the ancient canons; and in what part soever of the diocese a presbyter was, by order of his bishop, he was, properly speaking, resident on his cure : moreover in those canons the word parish is used to signify a dio
In this case then the relation which the clergy had to their bishop and to the people, did not depend on their having houses among their flocks.
But as Christianity spread and believers multiplied, the old method was found very inconvenient: therefore lords of manors, &c. were encouraged to erect churches on their lands; and the bishop for this purpose y elded part of his right to such founders, permitting them to name the incumbent, but reserving to himself the power of judging of his qualification : this the origin of lay patronage : moreover it appears that a parochial church could not be consecrated until provision was made for a house and glebe.
Now this change in the outward face of the diocese was pecessarily followed by a change of discipline; and this again introduced into the law of the church a new notion of residence, that is, of legal residence, which implies living and abiding not only in the parish, but in the very glebe house itself. The reason of this dilated on, showing its utility and equity; since,