Dispensation

DISPENSATION, a term with two main applications, (I) to the action of administering, arranging or dealing out, and (2) to the action of allowing certain things, rules, etc., 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 household by a steward; thus dispensatio was, in theology, the word chosen to translate the Greek oitcovopla, economy, i.e., divine or re ligious systems, as in the Jewish, Mosaic, Christian dispensations. Dispensation in law is, strictly speaking, the suspension by com petent authority of general rules of law in particular cases. Its object is to modify the hardships often arising from the rigorous application of general 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 obligation already contracted, but avoids a breach of the law by suspending the obligation to con form to it, e.g., a dispensation or licence to marry within the prohibited degrees, or to hold benefices in plurality.

I. Ecclesiastical Law.—In the theory of the canon law the dispensing power is the col ollary of the legislative, the authority that makes laws, and no other, having power to suspend them. The dispensing power, like the legislative authority, was formerly invested in general councils and even in provincial synods; but in the West, with the gradual centralization of authority at Rome, it became ultimately vested in the pope as the supreme lawgiver of the Church. Subject, however, to the supreme juris diction of the pope, the power of dispensation continued to reside in the other organs of the Church in exact proportion to their legislative capacities, i.e., in provincial synods in respect of re gional rules laid down by them, and in bishops in respect of rules laid down by them for their dioceses. In the earlier periods of the papacy the tendency was to disclaim all authority to make concessions and grant relief from traditional rules ; but as time went on and the Church expanded, this rigid attitude proved im possible 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 (494), 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 necessity and in the highest interests of the Church; in practice, from the i ith century onwards, the power of dis pensation was used by the popes as one of the most potent in struments for extending their influence. Dispensations to hold benefices in plurality formed, with provisions and the papal claim to the right of direct appointment, a powerful means for extending the patronage of the Holy See and therefore its hold over the clergy, and from the 13th century onwards this abuse assumed vast proportions (Hinschius, Kirchenreclit, iii. p. 25o). Even more scandalous was the almost unrestrained traffic in licences and dispensations at Rome, which grew up, at least as early as the i4th century, owing to the fees charged for such dispensations having come to be regarded by the Curia as a regular source of revenue (Woker, Das kirchliche Finanzwesen der Pdpste, Nord lingen, 1878, pp. 75, 16o). Loud complaints of these abuses were raised in the reforming councils of Constance and Basel in the i 5th century, but nothing was done effectually to check them.

The actual practice of the Church is based upon the decisions of the council of Trent, which left the mediaeval theory intact while endeavouring to guard against its abuses. The proposal put forward by the Gallican and 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 reformation of morals or ecclesiastical discipline, were decreed "saving the authority of the Holy See" (Sess. 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 major quandoque utilitas), and in all cases gratis. The payment of money for a dispensation was ipso facto to make the dispensation void (Sess. xxv. cap. 18, de ref.).

Church of England.—By an Act of Henry VIII. , it was enacted that neither the king, his successors, nor any of his subjects should henceforth sue for licences, dispensations, etc., to the see of Rome, and that the power to issue such licences, dispensations, etc., "for causes not being contrary or repugnant to the Holy Scriptures and laws of God," should be vested in the archbishop of Canterbury for the time being, who at his own discretion was to issue such dispensations, etc., under his seal, to the king and his subjects. The power of dispensation thus vested in the archbishops partly fell obsolete, partly has been curtailed by subsequent statutes, e.g., the Pluralities Act of 1838. It is now confined to granting dispensations for holding two benefices at once, to issuing licences for non-residence, and in matrimonial cases to the issuing of special licences. The dispens ing 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 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 patents. This has led, since the pass ing of the 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 chancellor licensing them.

See article "Dispensation" and kindred topics in the Catholic Ency clopaedia; in Herzog-Hauck, Realencyclopddie (by Hinschius) ; Wetzer and Welte's Kirchenlexikon (end ed.) ; also F. Lichtenberger, Encyclo pedia des sciences religieuses (Paris, 1878), s.v. "Dispense"; and Philli more, Ecclesiastical Law.

2.

Constitutional Law.—The power of dispensation from the operation of the ordinary law in particular cases is, of course, everywhere inherent in the supreme legislative authority, how ever rarely it may be exercised. Divorce (in Ireland) by act of parliament may be taken as an example which still actually occurs. On the other hand, the dispensing power once vested in the crown in England is now merely of historical interest, though of great importance in the constitutional struggles of the past. This power possessed by the crown of dispensing with the 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 malurn in se, a principle of the canon law, but one difficult to reconcile with English legal principles, since no act is legally malurn unless forbidden by law. This was pointed out by Chief Justice Vaughan in the celebrated judgment in the case of Thomas v. Sorrell, when he rejected the distinction between mala in se and male prohibita as confusing, and attempted to define the dispens ing 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 Sir William Anson points out, only showed the extreme difficulty of limiting the power ascribed to the crown, a standing grievance from the time that parliament had risen to be a constituent part of the 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 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 James II. of the dispensing power. His action in dispensing with the Test Act, in order to enable Roman Catholics to hold office under the crown, was supported by the courts in the test case of Godden v. Hales, but it made the Revolution inevitable. By the 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 was admitted by the clause maintaining the validity of dispensations granted in a certain form before Oct. 23, 1689.

See Anson, Law and Custom of the Constitution, pt. i. "Parliament," 3rd ed., pp. 311-319; F. W. Maitland, Const. Hist. of England (Cambridge, 1908), pp. 302, etc.; Stubbs, Const. Hist. ss. 290, 291.

(W. A. P.)