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DISPENSATION

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Originally appearing in Volume V08, Page 315 of the 1911 Encyclopedia Britannica.
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DISPENSATION , a See also:

term with two See also:main applications, (1) to the See also:action of administering, arranging or dealing out, and (2) to the action of allowing certain things, rules, &c., to be done away with, relaxed. Of these two meanings the first is to be derived from the classical Latin use of dispensare, literally, to weigh out, hence to distribute, especially of the orderly arrangement of a See also:household by a steward; thus dispensatio was, in See also:theology, the word chosen to translate the See also:Greek oteovoiata, See also:economy, i.e. divine or religious systems, as in the Jewish, See also:Mosaic, See also:Christian dispensations. Dispensation in See also:law is, strictly speaking, the suspension by competent authority of See also:general rules of law in particular cases. Its See also:object is to modify the hardships often arising from the rigorous application of general See also:laws to particular cases, and its essence is to preserve the law by suspending its operation, i.e. making it non-existent, in such cases. It follows, then, that dispensation, in its strict sense, is anticipative, i.e. it does not absolve from the consequences of a legal See also:obligation already contracted, but avoids a See also:breach of the law by suspending the obligation to conform to it, e.g. a dispensation or See also:licence to marry within the prohibited degrees, or to hold benefices in See also:plurality. The term is, however, frequently used of the See also:power claimed and exercised by the supreme legislative authority of altering or abrogating in particular cases conditions established under the existing law and of releasing individuals from obligations incurred under it, e.g. dispensations granted by the See also:pope ex plenitudine potestatis from the obligation of See also:celibacy, from religious and other vows, from matrimonium Tatum, non consummatum, &c. 1. Ecclesiastical Law.—In the theory of the See also:canon law the dispensing power is the corollary of the legislative, the authority that makes laws, and no other, having power to suspend them. It follows that the law of nature (See also:jus naturae) and a fortiori the law of See also:God (jus divinum) are not subject to dispensation of any earthly authority, and that it is only the disciplinary laws made by the See also:Church that the Church is empowered to suspend or to abrogate. Thus, not even the pope could See also:grant a dispensation for a See also:marriage between persons related in the See also:direct See also:line of ascent or descent, e.g. See also:father and daughter, or between See also:brother and See also:sister, while dispensations are granted for marriages within other prohibited degrees, e.g. See also:uncle and niece. The dispensing power, like the legislative authority, was formerly invested in general See also:councils and even in provincial synods; but in the See also:West, with the See also:gradual centralization of authority at See also:Rome, it became ultimately vested in the pope as the supreme lawgiver of the Church. Subject, however, to the supreme See also:jurisdiction of the pope, the power of dispensation continued to reside in the other See also:organs of the Church in exact proportion to their legislative capacities, i.e. in provincial synods in respect of regional rules laid down by them, and in bishops in respect of rules laid down by them for their dioceses.

According to Du Cange, the earliest See also:

record of the use of the word dispensatio in this connexion is in the See also:letter of Pope See also:Gelasius I. of the Irth of See also:March 494, to the bishops of Lucania (in Jaffe, Reg. See also:Pont. Rom., ed. 2, tom. i. no. 636) : necessaria rerum Dispensatione constringimur, . . . sic canonum paternorum decreta librare, .. . ut quae praesentium See also:necessitas temporum restaurandis Ecclesiis relaxanda deposcit, adhibita consideratione diligenti, quantum fieri potest temperemus' Dispensations from the observance 2 In this See also:quotation the word dispensatio still has its meaning of " economy ": " we are See also:bound by the necessary economy of things." Possibly its use by the pope in this connexion may have led to the technical meaning of the word dispensatio in the See also:medieval canon law. expeditionnaires) existed at Rome whose See also:sole business was obtaining dispensations on See also:commission, and one of these, named Pelletier, published at See also:Paris in 1677, under the royal imprimatur, a See also:regular. See also:tariff of the sums for which in any given See also:case a dispensation might be obtained. That the " urgent and just cause " was, in the circumstances, a very See also:minor See also:consideration was to be expected, and the enlightened pope See also:Benedict XIV., himself a canon lawyer of See also:eminence, complained " Dispensationem non raro concedi in Dataria, sine causa, nempe ob eleemosynam quae praestatur " (Inst. $7, No. 26). It may be added that the worst abuses of this See also:system have See also:long since disappeared.

The bishops have their own correspondents at Rome, and one of the duties of the See also:

diplomatic representatives of See also:foreign states at the See also:Curia is to see that their nationals receive their dispensations without of traditional•rules were, however, during the See also:early centuries exceedingly rare, and there are more instances of the popes repudiating than of their exercising the power to grant them. Thus See also:Celestine I. (d. 432) wrote: " ` The rules govern us, not we the rules: we are subject to the canons, since we are the servants of the precepts of the canons " (Epist.3 ad Episcopos Illyrici); and Pope Zozimus wrote even more strongly: " This see possesses no authority to make any concession or See also:change; for with us abides antiquity firmly rooted (inconvulsis radicibus), reverence for which the decrees of the Fathers enjoined." As See also:time went on, however, and the Church See also:expanded, this rigidly conservative attitude proved impossible to maintain, and the principle of tempering" the law when forced to do so " by the exigencies of affairs or of the times (rerum vel temporum angustia), as laid down by Gelasius, was adopted into the canon law itself. The principle was, of course, singularly open to abuse. In theory it was laid down from the first that dispensations were only to be granted in cases of urgent See also:necessity and in the highest interests of the Church; in practice, from the 1rth See also:century onwards, the power of dispensation was used by the popes as one of the most potent See also:instruments for extending. their See also:influence. Dispensations to hold benefices in plurality formed, with See also:pro-visions and the papal claim to the right of direct See also:appointment, a powerful means for extending the patronage of the See also:Holy See and therefore its hold over the See also:clergy, and from the 13th century onwards this abuse assumed vast proportions (See also:Hinschius iii. p. 25o). Even more scandalous was the almost unrestrained See also:traffic in licences and dispensations at Rome, which See also:grew up, at least as early as the 14th century, owing to the fees charged for such dispensations having come to be regarded by the Curia as a regular source of See also:revenue (Woker, Das kirehliche Finanzwesen der Papste, See also:Nordlingen, 1878, pp. 75, 16o). Loud complaints of these abuses were raised in the reforming councils of See also:Constance ands See also:Basel in the 15th century, but nothing was done effectually to check them. The actual practice'of the See also:Roman See also:Catholic Church is based upon the decisions of the See also:council of See also:Trent, which See also:left the medieval theory intact while endeavouring to guard against its abuses.

The proposal put forward by the Gallican and See also:

Spanish bishops to subordinate the papal power of dispensation to the consent of the Church in general council was rejected, and even the canons of the council of Trent itself, in so far as they affected See also:reformation of morals or ecclesiastical discipline, were decreed " saving the authority of the Holy See " (Sess. See also:xxv. cap. 21, de ref.). At the same time it was laid down in respect of all dispensations, whether papal or other, that they were to be granted only for just and urgent causes, or in view of some decided benefit to the Church (urgens justaque causa et See also:major quandoque utilitas), and in all cases gratis. The See also:payment of See also:money for a dispensation was ipso facto to make the dispensation void (Sess. xxv. cap. 18, de ref.). Though verbal dispensations are valid, papal dispensations are given in See also:writing. Before the constitution Sapienti of See also:Pius X. (1908) all dispensations in foro externo, especially in matrimonial causes, were dealt with by the Dataria Apostolica, those in foro intern by the See also:Penitentiary, which latter also possessed in foro externo the right to grant dispensations. in matrimonial causes to. poor See also:people. Since 1908 the Dataria only deals with dispensations in matters concerning benefices, dispensations in matrimonial matters having been transferred to the new See also:Congregation on the discipline of the sacraments (see CURIA See also:ROMANA). The regular See also:form of dispensation is the forma commissaria (Trill. Sess. xxii. cap. 5, de ref.), i.e. a See also:mandate to the See also:bishop to grant the dispensation, after due inquiry, in the pope's name.

In exceptional cases, e.g. sovereigns or bishops, the dispensation is sent direct to the petitioner (forma gratiosa). Dispensations are nominally gratuitous; but the officials are entitled to fees for See also:

drawing them up, and there are customary " compositions " (compositions) which are destined for charitable See also:objects in Rome. These fees were and are regulated according to the capacity of the petitioners to pay, the result being that the abuses which the council of Trent had sought to abolish continued to flourish. In the t 7th century a specially privileged class of bankers (banquiersovercharge. Bishops are by right (jure ordinario) competent to dispense in all cases expressly reserved to them by the canon law, e.g. in the See also:matter of publication of banns of marriage. They possess besides See also:special See also:powers delegated to them by the pope and renewed every five years (facultates quinquennales), or by virtue of faculties granted to them personally (facultates extraordinariae), e.g. to dispense from rules of See also:abstinence, from See also:simple vows, and with some exceptions from the See also:prohibition of marriage within prohibited degrees. Church of See also:England.—By 25 See also:Henry VIII. cap. 21. sec. 2 (1534), it was enacted that neither the See also:king, his successors, nor any of his subjects should henceforth See also:sue for licences, dispensations, &c., to the see of Rome, and that the power to issue such licences, dispensations, &c., " for causes not being contrary or repugnant to the Holy Scriptures and laws of God," should be vested in the See also:archbishop of See also:Canterbury for the time being, who at his own discretion was to issue such dispensations, &c., under his See also:seal, to the king,and his subjects. The power of. dispensation thus vested in the archbishops partly See also:fell obsolete, partly has been curtailed by subsequent statutes, e.g. the Pluralities See also:Act of 1838. It is now confined to granting dispensations for holding two benefices at once, to issuing licences for non-See also:residence, and in matrimonial cases to the issuing of special licences. The dispensing power of bishops in the Church of England survives only in the right to grant marriage licences, i.e. dispensations from the obligation to publish the banns.

Though, however, these licences and dispensations are given under the archiepiscopal and episcopal See also:

seals, they are actually issued by the commissaries of faculties and vicars-general (chancellors), independently, in virtue of the powers conferred on them by their See also:patents. This has led, since the passing of the See also:Divorce Acts and the Marriage with a Deceased Wife's Sister Act, to a curiously anomalous position, licences for the remarriage of divorced persons having been issued under the bishop's seal, while the bishop himself publicly protested that such marriages were contrary to " the law of God," but that he himself had no power to prevent his See also:chancellor licensing them. See Hinschius, Kirchenrecht (See also:Berlin, 1883), iii. 250, &C.; See also:article Dispensation" by Hinschius in See also:Herzog-Hauck, Realencyklopddie (See also:Leipzig, 1898) ; article " Dispensation " in Wetzer and Welte's Kirchenlexikon (2nd ed. See also:Freiburg See also:im See also:Breisgau, 1882-1901); F. Lichtenberger, Encyclopedie See also:des sciences religieuses (Paris, 1878), s.v. " Dispense "; See also:Phillimore, Ecd. Law. 2. Constitutional Law.—The power of dispensation from the operation of the See also:ordinary law in particular cases is, of course, everywhere inherent in the supreme legislative authority, how-ever rarely it may be exercised. Divorce (in See also:Ireland) by act of See also:parliament may be taken as an example which still actually occurs. On the other See also:hand, the dispensing power once vested in the See also:crown in England is now merely of See also:historical See also:interest, though of See also:great importance in the constitutional struggles of the past.

This power possessed by the crown of dispensing with the See also:

statute law is said to have been copied from the dispensations or non obstante clauses granted by the popes in matters of canon law; the parallel between them is certainly very striking, and there can be no doubt that the principles of the canon law influenced the decisions of the courts in the matter. It was, for instance, very generally laid down that the king could by. dispensation make it lawful to do what was malum prohibitum but not to do what was See also:indium in se, a'principle of the canon law, but one difficult to reconcile with See also:English legal principles, since no act is legally *See also:alum unless forbidden by law. This was pointed out by See also:Chief See also:Justice See also:Vaughan in the celebrated See also:judgment in the case of See also:Thomas v. Sorrell, when he rejected the distinction between See also:mala in se and mala prohibita as confusing, and attempted to define the dispensing power of the crown by limiting it to cases of individual breaches of penal statutes where no third party loses: a right of action, and where the breach is not continuous, at the same time denying the power of the crown to dispense with any general penal law. This judgment, as See also:Sir See also:William See also:Anson points out, only showed the extreme difficulty of limiting the power ascribed to the crown, a See also:standing grievance from the time that parliament had risen to be a constituent See also:part of the See also:state. So long as the legal principle by which the law was " the king's law " survived there was in fact no theoretical basis for such See also:limitation, and the matter resolved itself into one of the great constitutional questions between crown and parliament which issued in the Revolution of 1688. The supreme crisis came owing to the use made by See also:James II. of the dispensing power. His action in dispensing with the Test Act, in See also:order to enable Roman Catholics' to hold See also:office under the crown, was supported by the courts in the test case of Godden v. See also:Hales, but it made the Revolution inevitable. By the See also:Bill of Rights the exercise of the dispensing power was forbidden, except as might be permitted by statute. At the same time the legality of its exercise in the past was admitted by the clause maintaining the validity of dispensations granted in a certain form before the 23rd of See also:October 1688. See Anson, Law and See also:Custom of the Constitution, part i.

" Parliament," 3rd ed. pp. 311-319; F. W. See also:

Maitland, Const. Hist. of England (See also:Cambridge, 1908), pp. 3oz, &c.; See also:Stubbs, Const. Hist. ss. 290, 291. (W. A.

End of Article: DISPENSATION

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