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may dispense with residence; and it supposes others, referring them to the judgment and discretion of the bishop.
1. It allows of a dispensation for such as abide in some approved university for the study of divinity or canon law. This dispensation is limited in point of time, and not allowed to exceed five or six years; and the reason of granting it is a presumption that it will be for the benefit of the church and people to have the minister himself well instructed; and that his absence from his cure for a few years will be compensated by the ability he will then acquire to execute his office to the better edification of the people.
This being the reason on which this dispensation is grantable, it follows that no incumbent can with a good conscience make use of this exemption, unless he does bona fide pursue the end for which it is granted, by a close application to the study of his profession in the university where he resides.
This reason, introduced at first -by the canon law, has been approved by the legislature of this kingdom ; and scholars conversant and abiding for study, without fraud or covin, at any university within this realm, or without,'are excepted from the penalties of the 21st Hen. VIII. cap. 13.
This exception, so generally expressed, was soon abused; which occasioned the restrictions laid on it by the 28th of Hen. VIII. cap. 13.; by which act the privilege was confined to those that were under the age of forty years.
So that with respect to this point the statute has made no alteration at all, except restraining the grant to persons under forty years of age. For the statute 21 Hen. VIII. c. 13, enacts nothing new with respect to students in the university ; and that of 28 Hen. VIII. cap. 13. having limited the general licences for studying in the university, has a clause to except all heads of houses and public officers, &c. from the said limitation. So that the persons thus excepted stand clear of the statutes, which leave them just where they found them, and subject to be called to residence, unless they have the ordinary's dispensation.
On both these statutes therefore it must be observed, and pught to be remembered, that they grant no licence of non
residence to any person on any occasion : they were made to inforce residence, and are introductive of a new penalty on non-residence; 'from which new penalty certain persons, in the circumstances therein described, are exempted; but those persons, in the circumstances therein described, are liable still to ecclesiastical censures, unless they are dispensed with in the manner the law before and since the statutes requires. And this is a point in which many have been mistaken or willingly ignorant.
2. The canon law allows the service of the bishop to be a sufficient licence for non-residence. The necessary care and business of a diocese require that the bishop should have the assistance of one or more discreet clergymen; and since it is much easier to find a proper curate to serve a parish, than a proper person to advise and assist the bishop in the general care of the diocese, the law considers the person who abides with the bishop for these purposes, as more usefully employed than if he were confined to the care of one parish only. In this case therefore the good of the church is made the foundation of the dispensation.
This reason also is admitted in the statutes before-mentioned; and chaplains of archbishops and bishops, daily attending in their households, are exempted from the penalty of the act.
The statute has extended this exemption to other cases not expressly mentioned in the canon law, as to the chaplains of the nobility and great officers of the crown; though cases of this kind had usually been dispensed with before the act; which dispensations were founded on the general power, reserved to the bishop by the canon law, to dispense where there appeared to him to be justa et rationabilis causa : and since the virtue and example of great and potent families will necessarily have a great influence on the manners and religion of any country, it was thought reasonable to dispense with the personal attendance of an incumbent in his parish, whilst he was employed in teaching and instructing the younger parts of great families, and performing the offices of his function daily to all parts of it. So that these dispensations had for their end the general interest and good of religion in the kingdom.
That the exemption in the statute granted to the chaplains of the nobility proceeds on the same views, is evident from the restriction under which the exemption is granted ; for it extends not to all chaplains of the nobility in general, but to such only as “are daily attending, abiding, and remaining in their honorable households;' and for so long time only, as such chaplains shall abide and dwell without fraud and covin in any of the said honorable households.'
The statute considers the service of the chaplain in the household of his lord as the only ground of the exemption; and it cannot be doubted but that such service only is meant as is proper and peculiar to the office of a chaplain. And therefore a mere retainer of a clergyman to be chaplain to a nobleman, unless he actually abides and dwells in the household, is no title to the exemption of the statute; and if one retained and titled chaplain abides in the household to do any other service, and not the service of a chaplain,-it is not such an abiding as the statute intends, but is fraudulent and covinous.
I have spoken to this case more particularly, because it is a common case; and I hope all who plead this title to an exemption from residence, will consider whether they pursue the reason and meaning of the law. It will be but little comfort to screen themselves under the letter of the law, if they are condemned by the reason of the law and their own conscience.
3. The service of the church is another reason taken notice of by the canon law; as attendance, for instance, in convocation. The statute does not mention this, neither has it, I conceive, condemned it; for he is not wilfully absent from his cure, (as the statute speaks,) 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; but it is so only during the time a clerk is actually in the king's service, and the statute before-mentioned has exempted even the king's chaplains from the penalty of non-residence, so long only as they shall be attending in the household.
These are the principal cases in which non-residence is excusable by the canon law and the laws of this realm; and it is manifest from the reason of these cases, that a dispensation for residence is by no law permitted to be granted as a favor to
any person, and that it is only to be justified when the service of the church or the commonwealth make it reasonable.
This general observation on the cases which the law has expressly provided for, will enable us to judge of the cases not expressly provided for by the law, but reserved to 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, the justa et rationabilis causa is the good either of church or state ; and we may be sure the laws never intended the bishop should grant such dispensations, but for reasons of the like nature, or in cases of great necessity. Dispensations of this kind never were fit to be asked as favors of the bishop, nor had he power to grant them as favors; but was bound to direct his judgment as the cause appeared to be justa et rationabilis, or otherwise.
That the bishops had and exercised this power in the church of England, is manifest from many instances remaining in the registers of the several dioceses, and the authority of Lyndwood, who makes the bishop's licence to be necessary in all cases: his words, speaking of the rectors of parishes, are : si sine licentia non residerent-contra eos procedi posset secundum exigentiam jurium in ea parte statutorum.
But the great question is, how this matter now stands since the statute of the 21st Hen. VIII.
By the words of this statute, "all licences or dispensations obtained at the court of Rome, or elsewhere, by any persons to be non-resident contrary to the act, are declared to be void and of none effect; and every person putting such dispensation in execution is subject to a penalty of twenty pounds.
The enacting part of this statute requires that every archdeacon, dean, dignitary, parson, and vicar, be constantly resi. dent in, at, and on his dignity or benefice; and in case he has a plurality, that he shall at least be resident on one of his dignities or benefices.
Then follows the penalty for non-residence. 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 the act goes on, and makes the exceptions which I have already mentioned, for persons employed in the king's service, or as chaplains to bishops or temporal lords, or great officers of the crown; for scholars studying at the university and the like; and a provision there is for the king to give licence for non-residence to his own chaplains.
By the common law the service of the king, so long as the service continues, is a dispensation of residence; and the king, as supreme ordinary, could give licence for non-residence in other cases : the rights are preserved to the crown, but under this limitation, that a licence from the king is restrained to his own chaplains only.
If this act 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 the persons exempted by the act from the penalties of it, cannot justify non-residence merely by pleading the act; but they must justify it by a dispensation from the ordinary, and by showing that the dispensation is not contrary to the act: were it otherwise, the law must be supposed to leave every man to judge in his own case, and to dispense with himself, which I suppose no law ever did. The cases therefore excepted in the act are cases left open to dispensation, and stand just as they did before the act; and this is clear from the words of the statute, which does not take away all dispensations, but such only as are contrary to the statute; so that dispensations not contrary to the statute are left as they were. There are many cases not provided for in the statute, which must in all reason and equity be considered as excuses for non-residence. If a man taken sick at a distance from home should be unable to return within a month, or if it should be judged necessary for him to remove for the recovery of health; in these and the like cases the statute has been and always will be construed so as to be made consistent with the common rules of justice and equity.
There is one case in which dispensations are frequently ap