Chapter LXIV: Act 46: , Parl. 3, Act 106, Parl. 7, Act 24, Parl. 11, King James VI., do (40)

Provided that this act of non-residence shall not extend nor be prejudicial to any such spiritual person as shall chance to be in the king’s service beyond the sea, nor to any person going to any pilgrimage or holy place beyond the sea, during the time that they shall so be in the king’s service, or in the pilgrimage going and returning home; nor to any scholar or scholars being conversant and abiding for study, without fraud or covin, at any university within this realm or without; nor to any of the chaplains of the king or queen, daily or quarterly attending and abiding in the king’s or queen’s most honourable household; nor to any of the chaplains of the prince or princess, or any of the king’s or queen’s children, brethren, or sisters, attending daily in their honourable households, during so long as they shall attend in any of their households; nor to any chaplain of any archbishop or bishop, or of any spiritual or temporal lords of the parliament, daily attending, abiding, and remaining in any of their honourable households; nor to any chaplain of any duchess, marquess, countess, viscountess, or baroness, attending daily and abiding in any of their honourable households; nor to any chaplain of the lord chancellor, or treasurer of England, the king’s chamberlain, or steward of his household for the time being, the treasurer and comptroller of the king’s most honourable household for the time being, attending daily in any of their honourable households; nor to any chaplain of any of the knights of the honourable order of the Garter, or of the chief justice of the King’s Bench, warden of the ports, or of the master of the rolls, nor to any chaplain of the king’s secretary, dean of the chapel, amner for the time being, daily attending and dwelling in any of their households, during the time that they shall so abide and dwell without fraud or covin, in any of the said honourable households; nor to the master of the rolls, or dean of the arches, nor to any chancellor or commissary of any archbishop or bishop, nor to as many of the twelve masters of the chancery and twelve advocates of the arches as shall be spiritual men, during so long time as they shall occupy their said rooms and offices; nor to any such spiritual persons as shall happen by injunction of the lord chancellor, or the king’s council, to be bound to any daily appearance and attendance to answer to the law, during the time of such injunction. (S. 28.)

Provided also, that it shall be lawful to the king to give licence to every of his own chaplains, for non-residence upon their benefices; anything in this act to the contrary notwithstanding. (S. 29.)

Provided also, that every duchess, marquess, countess, baroness, widows, which shall take any husbands under the degree of a baron, may take such number of chaplains as they might have done being widows; and that every such chaplain may have like liberty of non-residence, as they might have had if their said ladies and mistresses had kept themselves widows. (S. 33.) [This statute is abstracted from Burn in order to show the history of the law regarding residence, but it was repealed by the 57 Geo. III. c. 99, and that act also was repealed, and the whole question resettled, in 1838, by 1 & 2 Vic. c. 106, which is abstracted towards the end of this article.]

By the 25 _Hen._ VIII. c. 16. Whereas by the statute of the 21 Hen. VIII. c. 13, it was ordained, that certain honourable persons, as well spiritual as temporal, shall have chaplains beneficed with cure to serve them in their honourable houses, which chaplains shall not incur the danger of any penalty or forfeiture made or declared in the same parliament, for non-residence upon their said benefices; in which act no provision was made for any of the king’s judges of his high courts, commonly called the King’s Bench and the Common Pleas, except only for the chief judge of the King’s Bench, nor for the chancellor nor the chief baron of the king’s Exchequer, nor for any other inferior persons being of the king’s most honourable council: It is therefore enacted, that as well every judge of the said high courts, and the chancellor and chief baron of the Exchequer, the king’s general attorney and general solicitor, for the time that shall be, shall and may retain and have in his house, or attendant to his person, one chaplain having one benefice with cure of souls, which may be absent from his said benefice, and not resident upon the same; the said statute made in the said one and twentieth year, or any other statute, act, or ordinance to the contrary notwithstanding.

By the 28 _Hen._ VIII. c. 13. Whereas divers persons, under colour of the proviso in the act of the 21 Hen. VIII. c. 13., which exempteth persons conversant in the universities for study, from the penalty of non-residence, contained in the said act, do resort to the universities, where, under pretence of study, they live dissolutely, nothing profiting themselves by study at all, but consume the time in idleness and other pastimes: It is enacted, that all persons who shall be to any benefice or benefices promoted, as is aforesaid, being above the age of forty years, the chancellor, vice-chancellor, commissary of the said universities, wardens, deans, provosts, presidents, rectors, masters, principals, and other head rulers of colleges, halls, and other houses or places corporate within the said universities, doctors of the chair, (readers of divinity in the common schools of divinity in the said universities only excepted,) shall be resident and abiding at and upon one of their said benefices, according to the intent and true meaning of the said former act, upon such pain and penalties as be contained in the said former act, made and appointed for such beneficed persons for their non-residence; and that none of the said beneficed persons, being above the age aforesaid, except before except, shall be excused of their non-residence upon the said benefices, for that they be students or resiants within the said universities; any proviso, or any other clause or sentence, contained in the said former act of non-residence, or any other thing to the contrary in anywise notwithstanding.

And further, that all and singular such beneficed persons, being under the age of forty years, resident and abiding within the said universities, shall not enjoy the privilege and liberty of non-residence, contained in the proviso of the said former act, unless he or they be present at the ordinary lecture and lectures, as well at home in their houses, as in the common school or schools, and in their proper person keep sophisms, problems, disputations, and other exercises of learning, and be opponent and respondent in the same, according to the ordinance and statutes of the said universities; anything contained in the said proviso, or former act, to the contrary notwithstanding.

Provided always, that nothing in this act shall extend to any person who shall be reader of any public or common lecture in divinity, law civil, physic, philosophy, humanity, or any of the liberal sciences, or public or common interpreter or teacher of the Hebrew tongue, Chaldee, or Greek; nor to any persons above the age of forty years, who shall resort to any of the said universities to proceed doctors in divinity, law civil, or physic, for the time of their said proceedings, and executing of such sermons, disputations, or lectures, which they be bound by the statutes of the universities there to do for the said degrees so obtained.

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.

Thus, by a constitution of Archbishop Langton, bishops shall be careful to reside in their cathedrals, on some of the greater feasts, and at least in some part of Lent, as they shall see to be expedient for the welfare of their souls.—_Lynd._ 130.

And by a constitution of Otho: What is incumbent upon the venerable fathers, the archbishops and bishops, by their office to be done, their name of dignity, which is that of bishop (_episcopus_) or superintendent, evidently expresseth. For it properly concerns them (according to the gospel expression) to watch over their flock by night. And since they ought to be a pattern by which they who are subject to them ought to reform themselves, which cannot be done unless they show them an example, we exhort them in the LORD, and admonish them, that, residing at their cathedral churches, they celebrate proper masses on the principal feast days, and in Lent, and in Advent. And they shall go about their dioceses at proper seasons, correcting and reforming the churches, consecrating and sowing the word of life in the LORD’S field. For the better performance of all which they shall twice in the year, to wit, in Advent and in Lent, cause to be read unto them the profession which they made at their consecration.—_Athon_, 55.

And by a constitution of Othobon: Although bishops know themselves bound, as well by Divine as ecclesiastical precepts, to personal residence with the flock of GOD committed to them, yet because there are some who do not seem to attend hereunto, therefore we, pursuing the monition of Otho the legate, do earnestly exhort them in the LORD, and admonish them in virtue of their holy obedience, and under attestation of the Divine judgments, that, out of care to their flock, and for the solace of the churches espoused to them, they be duly present, especially on solemn days, in Lent and in Advent, unless their absence on such days shall be required for just cause by their superiors.—_Athon_, 118.

Canon 42. “Every dean, master, or warden, or chief governor of any cathedral or collegiate church, shall be resident in the same fourscore and ten days _conjunctim_ or _divisim_ in every year at the least, and then shall continue there in preaching the word of GOD, and keeping good hospitality, except he shall be otherwise let with weighty and urgent causes, to be approved by the bishop of the diocese, or in any other lawful sort dispensed with.”

“_To be approved by the bishop._”—By the ancient canon law, personal attendance on the bishop, or study in the university, was a just cause of non-residence; and as such, notwithstanding the non-residence, entitled them to all profits, except quotidians.—_Gibson_, 172.

Canon 44. “No prebendaries nor canons in cathedral or collegiate churches, having one or more benefices with cure, (and not being residentiaries in the same cathedral or collegiate churches,) shall, under colour of their said prebends, absent themselves from their benefices with cure above the space of one month in the year, unless it be for some urgent cause, and certain time to be allowed by the bishop of the diocese. And such of the said canons and prebendaries, as by the ordinances of the cathedral or collegiate churches do stand bound to be resident in the same, shall so among themselves sort and proportion the times of the year, concerning residence to be kept in the said churches, as that some of them always shall be personally resident there; and all those who be, or shall be, residentiaries in any cathedral or collegiate church, shall, after the days of their residency appointed by their local statutes or custom expired, presently repair to their benefices, or some one of them, or to some other charge where the law requireth their presence, there to discharge their duties according to the laws in that case provided. And the bishop of the diocese shall see the same to be duly performed and put in execution.”

So that, besides the general laws directing the residence of other clergymen, these dignitaries have another law peculiar to themselves, namely, the local statutes of their respective foundations, the validity of which local statutes this canon supposeth and affirmeth. And with respect to the new foundations in particular, the act of parliament of the 6 Anne, c. 21, enacteth, that their local statutes shall be in force, so far as they are not contrary to the constitution of the Church of England, or the laws of the land. This canon is undoubtedly a part of the constitution of the Church; so that if the canon interfereth in any respect with the said local statutes, the canon is to be preferred, and the local statutes to be in force only so far forth as they are modified and regulated by the canon.

There doth not appear to be any difference, either by the ecclesiastical or temporal laws of this kingdom, between the case of a rector and of a vicar concerning residence; except only that the vicar is sworn to reside, (with a proviso, unless he shall be otherwise dispensed withal by his diocesan,) and the rector is not sworn. And the reason of this difference was this: in the Council of Lateran, held under Alexander III., and in another Lateran council held under Innocent III., there were very strict canons made against pluralities: by the first of these councils, pluralities are restrained, and every person admitted _ad ecclesiam, vel ecclesiasticum ministerium_, is bound to reside there, and personally serve the cure; by the second of these councils, if any person, having one benefice with cure of souls, accepts of a second, his first is declared void _ipso jure_. These canons were received in England, and are still part of our ecclesiastical law. At the first appearance of these canons, there was no doubt made but they obliged all rectors; for they, according to the language of the law, had churches in title, and had _beneficium ecclesiasticum_: and of such the canons spoke. But vicars did not then look upon themselves to be bound by these canons, for they, as the gloss upon the decretals speaks, had not _ecclesiam quoad titulum_; and the text of the law describes them not as having benefices, but as bound _personis et ecclesiis deservire_; that is, as assistant to the rector in his church.

Upon this notion practice was founded and prevailed in England, which eluded the canons made against pluralities. A man beneficed in one church could not accept another, without avoiding the first; but a man possessed of a benefice could accept a vicarage under the rector in another church, for that was no benefice in law, and therefore not within the letter of the canon, which forbids any man holding two benefices.

The way then of taking a second living in fraud of the canon was this: a friend was presented, who took the institution, and had the church _quoad titulum_: as soon as he was possessed, he constituted the person vicar for whose benefit he took the living, and by consent of the diocesan allotted the whole profit of the living for the vicar’s portion, except a small matter reserved to himself.

This vicar went and resided upon his first living, for the canon reached him where he had the benefice; but having no benefice where he had only a vicarage, he thought himself secure against the said canons requiring residence.

This piece of management gave occasion to several papal decrees, and to the following constitution of Archbishop Langton, viz. “No ordinary shall admit any one to a vicarage, who will not personally officiate there.”—_Lyndwood_, 64.

And to another constitution of the same archbishop, by which it is enjoined, that vicars who will be non-resident shall be deprived.—_Lyndwood_, 131.

But the abuse still continued, and therefore Otho, in his legatine constitutions, applied a stronger remedy, ordaining, that none shall be admitted to a vicarage, but who, renouncing all other benefices (if he hath any) with cure of souls, shall swear that he will make residence there, and shall constantly so reside: otherwise his institution shall be null, and the vicarage shall be given to another.—_Athon_, 24.

And it is upon the authority of this constitution that the oath of residence is administered to vicars to this day. And this obligation of vicars to residence was further enforced by a constitution of Othobon, as followeth: If any shall detain a vicarage contrary to the aforesaid constitution of Otho, he shall not appropriate to himself the profits thereof, but shall restore the same; one moiety whereof shall be applied to the use of that church, and the other moiety shall be distributed half to the poor of the parish and half to the archdeacon. And the archdeacon shall make diligent inquiry every year, and cause this constitution to be strictly observed. And if he shall find that any one detaineth a vicarage contrary to the premises, he shall forthwith notify to the ordinary that such vicarage is vacant, who shall do what to him belongeth in the premises; and if the ordinary shall delay to institute another into such vicarage, he shall be suspended from collation, institution, or presentation to any benefices until he shall comply. And if any one shall strive to detain a vicarage contrary to the premises, and persist in his obstinacy for a month; he shall, besides the penalties aforesaid, be _ipso facto_ deprived of his other benefices (if he have any); and shall be disabled for ever to hold such vicarage which he hath so vexatiously detained, and from obtaining any other benefice for three years. And if the archdeacon shall be remiss in the premises, he shall be deprived of the share of the aforesaid penalty assigned to him, and be suspended from the entrance of the church until he shall perform his duty.—_Athon_, 95.

So that, upon the whole, the doubt was not, whether rectors were obliged to residence; the only question was, whether vicars were also obliged; and to enforce the residence of vicars, in like manner as of rectors, the aforesaid constitutions were ordained.—_Sherl._ ibid. 20–22.

Canon 47. “Every beneficed man licensed by the laws of this realm, upon urgent occasions of other service, not to reside upon his benefice, shall cause his cure to be supplied by a curate that is a sufficient and licensed preacher, if the worth of the benefice will bear it. But whosoever hath two benefices, shall maintain a preacher licensed in the benefice where he doth not reside, except he preach himself at both of them usually.”

And by the last article of Archbishop Wake’s directions it is required, that the bishop shall take care, as much as possible, that whosoever is admitted to serve any cure, do reside in the parish where he is to serve, especially in livings that are able to support a resident curate; and where that cannot be done, that they do at least reside so near to the place, that they may conveniently perform all their duties, both in the church and parish.

By the faculty of dispensation, a pluralist is required, in that benefice from which he shall happen to be most absent, to preach thirteen sermons every year; and to exercise hospitality for two months yearly; and, as much as in him lieth, to support and relieve the inhabitants of that parish, especially the poor and needy.

By the 1 Will. & Mar. c. 26. If any person presented or nominated by either of the universities to a popish benefice with cure, shall be absent from the same above the space of sixty days in any one year; in such case, the said benefice shall become void.—_Abridged from Burn_.

The 1 & 2 Vict. c. 106 repeals the 21 Hen. VIII. c. 13, and the 57 Geo. III. c. 99, relating to residence, and provides (s. 32) that every spiritual person holding any benefice shall keep residence on his benefice, and in the house of residence (if any) belonging thereto; and if any such person shall without any such licence or exemption, as is in this act allowed for that purpose, or unless he shall be resident at some other benefice of which he may be possessed, absent himself from such benefice, or from such house of residence, if any, for any period exceeding the space of three months together, or to be accounted at several times in any one year, he shall, when such absence shall exceed three months, and not exceed six months, forfeit one third part of the annual value of the benefice from which he shall so absent himself; and when such absence shall exceed six months, and not exceed eight months, one half part of such annual value; and when such absence shall exceed eight months, two third parts of such annual value; and when such absence shall have been for the whole year, three fourth parts of such annual value.

By sect. 33, the bishop may give licence to reside out of the usual house if it be unfit, or, if there be no house, in some convenient house, although not within such benefice.

By sect. 34, houses purchased by governors of Queen Anne’s bounty, to be deemed the lawful houses of residence.

By sect. 41, the incumbent is bound to keep in repair the house of residence, whether he reside in it or not. And for neglect of this he is to be subject to all the penalties of non-residence. For various exceptional cases, in which non-residence may be permitted, see sections 37, 38, 43, 44, &c.

By sect. 53, it is enacted, that in every year the bishop of every diocese is to make a return to her Majesty in council of the name of every benefice within his diocese, and the names of the several spiritual persons holding the same respectively, distinguishing those who are resident and those who are not resident, and stating whether they have exemption or not.

Sect. 59 contains strong provisions for the punishment of any one who holds a residence belonging to a benefice which has been let to him, and refuses to vacate after the incumbent is ordered to reside, and for enabling the incumbent to obtain possession of his residence by summary means.

Sect. 76 provides, that the curate under certain circumstances shall be required to reside.

This statute contains many provisions for enabling the ordinary to provide a residence where none exists.

RESIDENTIARY. The capitular members of cathedrals, who are bound to reside at the cathedral church, to perform the ordinary duties there, and to attend more immediately to its concerns. In England, all cathedrals of the old foundations have residentiaries, (canons residentiary, as they are usually called,) the great majority of prebendaries being nonresidentiary. Till the late parliamentary alterations, the greatest number of residentiaries was nine, the smallest four, the dean being always one. The following account of residentiaries is abridged from _Churton’s_ admirable and instructive Life of _Dean Nowell_, (pp. 313, _et seq._)

We learn from the ancient statutes of St. Paul’s, that it was customary in early days for all the canons or prebendaries to reside, being thirty in number; and when, in process of time, many, by mutual connivance, withdrew themselves to their cures or avocations elsewhere, the remaining few bound themselves by a new oath, to reside, and attend the duties of the Church.... At length the residentiaries were reduced to two only.... Bishop Braybrooke, to remedy this abuse, having interposed his authority, the matter was referred to arbitration of the Crown, by whom, in 1399, an order was made that residence should thereafter be kept according to the form of the Sarum Missal.... In Dean Colet’s time the statutes were revised, and it was ordered, that as the burdens of St. Paul’s were heavy, and the patrimony slender, there should in future be, under the dean as head, four, and only four, canons resident; eligible, as before, out of the senior prebendaries, offering themselves and protesting their residence, as formerly, at one of the quarterly feasts; when, if none came forward, some one should be invited to accept the office, and in case of refusal, be amerced by some pecuniary fine. The residentiaries of St. Paul’s, (p. 312,) though, in point of form, they are elective by the dean and chapter, are virtually, however, as is well known, in the patronage of the Crown; and upon every vacancy that occurs, a letter missive from his Majesty recommending some clerk, who is previously a prebendary by the collation of the bishop of London, is as certain in its operation, as the _congè d’élire_ for the election of a bishop: by resistance, in one case, as well as the other, a _præmunire_ would be incurred. Archdeacon Churton adds, (p. 316,) that “in the cathedral of Lincoln, the custom, in ancient times, was similar to what appears to have been the rule in St. Paul’s. Of the numerous body of prebendaries, members of that church, any one who chose it, used to protest in chapter his intention to become a residentiary, and they were obliged to admit him accordingly, upon taking the usual oath. A practice so variable and uncertain as this, being found inconvenient in many respects, it was settled and agreed in a general chapter, about three hundred years ago, with the concurrence of the bishops, that the number of residentiaries should be limited to four, who were to be the four _principal persons_ (see _Persona_) of the church, as the dean, precentor, chancellor, and subdean. An alteration not very dissimilar took place at a later period, 1697, in the church of York; when, in consequence of a representation from the dean and chapter, the number of residentiaries was reduced, under a writ of privy seal, from six to four, now, as formerly, in the nomination of the dean.”

To these observations of Archdeacon Churton may be added, that at Chichester, the chapter called on whom they pleased to reside, generally observing seniority. The same rule prevailed at Hereford, where the residentiaries are still elected by the chapter. In most cathedrals residence was _protested_ (as stated above) at one of the great chapters. Forty days’ notice was given at Lichfield. (See _Dugdale’s Monasticon_, ed. 1830, and _Dugdale’s St. Paul’s_.) The present number of residentiaries at Exeter was fixed by Bishop Ward, in 1663.

From the ancient documents appended to Dugdale’s History of St. Paul’s, it appears by more than one explicit declaration, that all the residentiaries were required to reside together, not merely dividing the year between them, according to the present most reprehensible arrangement. They were allowed to serve no other church whatever. They were required _to be all present together at all services on Sundays and greater holidays_, and so to manage between themselves on ordinary week days, that one at least should be present at each one of them [and it must be remembered that the daily services were then more numerous than now]. And if they neglected this perpetual residence, from which only occasional absence, as to parish clergymen from their cures, was permitted, they were not considered as entitled to their emoluments; and their neglect is censured in the old records, in terms of the strongest reprobation.

RESIGNATION. 1. A resignation is, where a parson, vicar, or other beneficed clergyman, voluntarily gives up and surrenders his charge and preferment to those from whom he received the same.—_Deg._ p. i. c. 14.

2. That ordinary who hath the power of institution, hath power also to accept of a resignation made of the same church to which he may institute; and therefore the respective bishop, or other person who, either by patent under him, or by privilege or prescription, hath the power of institution, are the proper persons to whom a resignation ought to be made. And yet a resignation of a deanery in the king’s gift may be made to the king; as of the deanery of Wells. And some hold, that the resignation may well be made to the king of a prebend that is no donative: but others, on the contrary, have held, that a resignation of a prebend ought to be made only to the ordinary of the diocese, and not to the king as supreme ordinary; because the king is not bound to give notice to the patron (as the ordinary is) of the resignation; nor can the king make a collation by himself without presenting to the bishop, notwithstanding his supremacy.—2 _Roll’s Abr._ 358. _Watson_, c. 4.

And resignation can only be made to a superior: this is a maxim in the temporal law, and is applied by Lord Coke to the ecclesiastical law, when he says, that therefore a bishop cannot resign to the dean and chapter, but it must be to the metropolitan from whom he received confirmation and consecration.—_Gibson_, 822.

And it must be made to the next immediate superior, and not to the mediate; as of a church presentative to the bishop, and not to the metropolitan.—2 _Roll’s Abr._ 358.

But donatives are not resignable to the ordinary; but to the patron, who hath power to admit.—_Gibson_, 822.

And if there be two patrons of a donative and the incumbent resign to one of them, it is good for the whole.—_Deg._ p. i. c. 14.

3. Regularly resignation must be made in person, and not by proxy. There is indeed a writ in the register, entitled, _litera procuratoria ad resignandum_, by which the person constituted proctor was enabled to do all things necessary to be done in order to an exchange; and, of these things, resignation was one. And Lyndwood supposeth, that any resignation may be made by proctor. But in practice there is no way (as it seemeth) of resigning, but either to do it by personal appearance before the ordinary, or at least to do it elsewhere before a public notary, by an instrument directed immediately to the ordinary, and attested by the said notary; in order to be presented to the ordinary, by such proper hand as may pray his acceptance. In which case the person presenting the instrument to the ordinary doth not resign _nomine procuratorio_, as proctors do; but only presents the resignation of the person already made.—_Gibson_, 822. _Deg._ p. i. c. 14. _Watson_, c. 4.

4. A collateral condition may not be annexed to the resignation, no more than an ordinary may admit upon condition, or a judgment be confessed upon condition, which are judicial acts.—_Watson_, c. 4.

For the words of resignation have always been, _pure_, _sponte_, _absolute_, _et simpliciter_; to exclude all indirect bargains, not only for money, but for other considerations. And therefore, in _Gayton’s case_, E. 24 Eliz., where the resignation was to the use of two persons therein named, and further limited with this condition, that if one of the two was not admitted to the benefice resigned within six months, the resignation should be void and of none effect; such resignation, by reason of the condition, was declared to be absolutely void.—_God._ 277. _Gibs._ 821. 1 _Still._ 334.

But where the resignation is made for the sake of exchange only, there it admits of this condition, viz. if the exchange shall take full effect, and not otherwise; as appears by the form of resignation, which is in the register.—_Gibson_, 821.

By a constitution of Othobon: Whereas sometimes a man resigneth his benefices that he may obtain a vacant see; and bargaineth with the collator, that if he be not elected to the bishopric, he shall have his benefices again; we do decree, that they shall not be restored to him, but shall be conferred upon others, as lawfully void. And if they be restored to him, the same shall be of no effect; and he who shall so restore him, after they have been resigned into his hands, or shall institute the resigner into them again, if he is a bishop, he shall be supended from the use of his dalmatic and pontificals; and if he is an inferior prelate, he shall be suspended from his office until he shall think fit to revoke the same.—_Athon_, 134.

5. No resignation can be valid till accepted by the proper ordinary; that is, no person appointed to a cure of souls can quit that cure, or discharge himself of it, but upon good motives, to be approved by the superior who committed it to him; for it may be he would quit it for money, or to live idly, or the like. And this is the law temporal, as well as spiritual; as appears by that plain resolution which hath been given, that all presentations made to benefices resigned, before such acceptance, are void. And there is no pretence to say, that the ordinary is obliged to accept; since the law hath appointed no known remedy if he will not accept, any more than if he will not ordain.—_Gibs._ 822. 1 _Still._ 334.

Lyndwood makes a distinction in this case, between a cure of souls and a sinecure. The resignation of a sinecure, he thinks, is good immediately, without the superior’s consent; because none but he that resigneth hath interest in that case. But where there is a cure of souls it is otherwise; because not he only hath interest but others also unto whom he is bound to preach the word of GOD; wherefore in this case it is necessary, that there be the ratification of the bishop, or of such other person as hath power by right or custom to admit such resignation.—_Gibson_, 823.

Thus in the case of the _Marchioness of Rockingham_ and _Griffith_, Mar. 22, 1755, Dr. Griffith being possessed of the two rectories of Leythley and Thurnsco, in order that he might be capacitated to accept another living which became vacant, to wit, the rectory of Handsworth, executed an instrument of resignation of the rectory of Leythley aforesaid, before a notary public, which was tendered to and left with the archbishop of York, the ordinary of the place within which Leythley is situate. It was objected, that here doth not appear to have been any acceptance of the resignation by the archbishop, and that without his acceptance the said rectory of Leythley could not become void. And it was held by the lord chancellor clearly, that the ordinary’s acceptance of the resignation is absolutely necessary to make an avoidance. But whether in this case there was a proper resignation and acceptance thereof, he reserved for further consideration; and in the mean time recommended it to the archbishop, to produce the resignation in court. Afterwards, on the 17th of April, 1755, the cause came on again to be heard, and the resignation was then produced. But the counsel for the executors of the late marquis declaring that they did not intend to make any further opposition, the lord chancellor gave no opinion upon the resignation, or the effect of it; but in the course of the former argument he held, that the acceptance of a resignation by the ordinary is necessary to make it effectual, and that it is in the power of the ordinary to accept or refuse a resignation.

And in the case of _Hesket_ and _Grey_, H. 28 Geo. II., where a general bond of resignation was put in suit, and the defendant pleaded that he offered to resign, but the ordinary would not accept the resignation; the court of King’s Bench were unanimously of opinion, that the ordinary is a judicial officer, and is intrusted with a judicial power to accept or refuse a resignation as he thinks proper; and judgment was given for the plaintiff.

6. After acceptance of the resignation, lapse shall not run but from the time of notice given: it is true the church is void immediately upon acceptance, and the patron may present if he please; but as to lapse, the general rule that is here laid down is the unanimous doctrine of all the books. Insomuch that if the bishop who accepted the resignation dies before notice given, the six months shall not commence till notice is given, by the guardian of the spiritualities, or by the succeeding bishop; with whom the act of resignation is presumed to remain.—_Gibson_, 823.

7. By the 31 Eliz. c. 6, s. 8. If any incumbent of any benefice with cure of souls shall corruptly resign the same; or corruptly take for or in respect of the resigning the same, directly or indirectly, any pension, sum of money, or other benefit whatsoever, as well the giver as the taker of any such pension, sum of money, or other benefit corruptly, shall lose double the value of the sum so given, taken, or had; half to the queen, and half to him that shall sue for the same in any of her Majesty’s courts of record.—_Abridged from Burn._

On the subject of general bonds of resignation, see _Simony_.

The following are the forms of resignation now in use:—

No. 1.

_Act of Resignation to be executed before a Notary Public and credible
Witnesses._

In the name of GOD, Amen. Before you, a notary public, and credible witnesses here present, I ——, in the county of ——, and diocese of ——, for certain just and lawful causes me thereunto especially moving, without compulsion, fraud, or deceit, do purely, simply, and absolutely resign and give up my said ——, and parish church of ——, with all their rights, members, and appurtenances, into the hands of the Right Reverend Father in GOD ——, by Divine permission lord bishop ——, or of any other whomsoever, having or that shall have power to admit this my resignation. And I totally renounce my right, title, and possession of, in, and to the same, with all their rights, members, and appurtenances heretofore had, and hitherto belonging to me; I quit them, and expressly recede from them by these presents. And that this my resignation may have its full effect, I do hereby nominate and appoint ——, jointly and severally my proctors or substitutes, to exhibit this my resignation to the said right reverend father, and in my name to pray that his lordship would graciously vouchsafe to accept thereof, and to pronounce, decree, and declare the —— of ——, aforesaid, void and to be void of my person to all intents of law that may follow thereupon: and to decree, if requisite, that intimation of the said avoidance may be issued to the patron thereof. In witness whereof I have hereunto set my hand and seal this —— day of ——, in the year of our LORD 185—.

Witnesses present, ——

No. 2.

_Attestation of the Notary Public._

On the —— day of ——, in the year of our LORD 185—, the Rev. ——, clerk, —— of ——, in the county of ——, and diocese of ——, appeared personally before me, the under-written notary public, and resigned, gave up, and surrendered his said ——, and appointed —— his proctors, jointly and severally to exhibit his resignation, hereunto annexed, to the Right Reverend Father in GOD ——, lord bishop of ——, and did and performed all other things as in his said resignation, hereunto annexed, is particularly specified and set forth, in the presence of witnesses attesting the same.

Which I attest, ——
Notary Public.

No. 3.

_Acceptation by the Ordinary of the Resignation._

We accept the resignation of the ——, in the county of ——, and our diocese of ——, as it is exhibited to us by ——, one of the proctors therein named, and we do declare the said —— void, and to be void of the person of the within named ——, the party resigning, to all intents of law that may follow thereupon, and do decree that an intimation of such avoidance, if requisite, be issued to the patron thereof.

Dated this —— day of ——, in the year of our LORD 185—.

No. 4.

_Copy of Letter to be sent to the Patron of the Benefice resigned, if it
is not in the Patronage of the Bishop himself._

185—.

I am desired by the Lord Bishop of —— to inform you, that his lordship accepted the Rev. —— resignation of the —— of ——, in the county of ——, and diocese of ——, on the —— of ——, and declared the same void.

Please to acknowledge the receipt of this notice.

I have the honour to be,

Your most obedient servant,

——
Secretary.

RESPOND. Before the Reformation a short anthem was so called, which was sung after reading three or four verses of a chapter; after which the chapter proceeded.

RESPOND. A half pillar attached to a wall, to support one side of an arch, of which the other side rests on a pillar. It has its name from _responding_ or _answering_ to a pillar.

RESPONSE. In the Church service, an answer made by the people speaking alternately with the minister. The use of responses is not to be viewed as a mere incidental peculiarity of liturgical services, but rather as a fundamental characteristic of Divine worship. Responses were not made for liturgies, but liturgies for responses. Many of the psalms are constructed on the responsive model, because this was a prior trait of the worship of the sanctuary; and it is an error to suppose that responses were introduced because these psalms happened to be in alternate verses. GOD’S worship is an act in which both minister and people are concerned. This worship the Church requires to be both mental and vocal, and has ordered her ritual accordingly,—not degrading the priest to a proxy, nor the congregation to an audience; but providing for supplications and thanksgivings, which, like herself, shall be strong because united. It should be deemed a high privilege by the churchman, that he is permitted to lift up his voice in prayer, as well as in praise, “in the congregation of the saints;” that he may openly profess his confidence in the FATHER of all, and his trust in the “LAMB OF GOD who taketh away the sin of the world;” that he may join aloud in the “solemn litany,” and cry for grace whereby he may keep GOD’S holy law for the time to come. In ages past the privilege was prized. Men were not ashamed, in primitive days, to confess CHRIST before the world, and, as it were, to rend the heavens with their fervent appeals. Neither was it by an ecclesiastical fiction, but in solemn reality, that they sung, “Therefore with angels and archangels, and with all the company of heaven, WE LAUD AND MAGNIFY THY GLORIOUS NAME.” May the time come when such devotion shall again adorn the “spacious courts” of Zion; when the vague murmur of confession, and the languid tones of penitence, the silent creed, and the smothered prayer, shall give place to the earnest and nervous expression of spiritual concern, and the animating testimony of devout gratitude!