1911 Encyclopædia Britannica/Dispensation
DISPENSATION, a term with two main applications, (1) to the 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 household by a steward; thus dispensatio was, in theology, the word chosen to translate the Greek οἰκονομία, economy, i.e. divine or religious systems, as in the Jewish, Mosaic, Christian dispensations. Dispensation in law is, strictly speaking, the suspension by competent 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 conform to it, e.g. a dispensation or licence to marry within the prohibited degrees, or to hold benefices in plurality. The term is, however, frequently used of the 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 pope ex plenitudine potestatis from the obligation of celibacy, from religious and other vows, from matrimonium ratum, non consummatum, &c.
1. Ecclesiastical Law.—In the theory of the 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 (jus naturae) and a fortiori the law of God (jus divinum) are not subject to dispensation of any earthly authority, and that it is only the disciplinary laws made by the Church that the Church is empowered to suspend or to abrogate. Thus, not even the pope could grant a dispensation for a marriage between persons related in the direct line of ascent or descent, e.g. father and daughter, or between brother and sister, while dispensations are granted for marriages within other prohibited degrees, e.g. uncle and niece.
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 jurisdiction 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 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 record of the use of the word dispensatio in this connexion is in the letter of Pope Gelasius I. of the 11th of March 494, to the bishops of Lucania (in Jaffé, Reg. Pont. Rom., ed. 2, tom. i. no. 636): necessaria rerum Dispensatione constringimur, ... sic canonum paternorum decreta librare, ... ut quae praesentium necessitas temporum restaurandis Ecclesiis relaxanda deposcit, adhibita consideratione diligenti, quantum fieri potest temperemus. Dispensations from the observance of traditional rules were, however, during the early centuries exceedingly rare, and there are more instances of the popes repudiating than of their exercising the power to grant them. Thus 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 change; for with us abides antiquity firmly rooted (inconvulsis radicibus), reverence for which the decrees of the Fathers enjoined.” As time went on, however, and the Church 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 necessity and in the highest interests of the Church; in practice, from the 11th century onwards, the power of dispensation was used by the popes as one of the most potent instruments 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 iii. p. 250). Even more scandalous was the almost unrestrained traffic in licences and dispensations at Rome, which 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 revenue (Woker, Das kirchliche Finanzwesen der Päpste, Nördlingen, 1878, pp. 75, 160). Loud complaints of these abuses were raised in the reforming councils of Constance and Basel in the 15th century, but nothing was done effectually to check them.
The actual practice of the Roman Catholic Church is based upon the decisions of the council of Trent, which left the medieval 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.).
Though verbal dispensations are valid, papal dispensations are given in writing. Before the constitution Sapienti of Pius X. (1908) all dispensations in foro externo, especially in matrimonial causes, were dealt with by the Dataria Apostolica, those in foro interno by the Penitentiary, which latter also possessed in foro externo the right to grant dispensations in matrimonial causes to poor people. Since 1908 the Dataria only deals with dispensations in matters concerning benefices, dispensations in matrimonial matters having been transferred to the new Congregation on the discipline of the sacraments (see Curia Romana).
The regular form of dispensation is the forma commissaria (Trid. Sess. xxii. cap. 5, de ref.), i.e. a mandate to the 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 drawing them up, and there are customary “compositions” (compositiones) which are destined for charitable 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 17th century a specially privileged class of bankers (banquiers expéditionnaires) existed at Rome whose sole business was obtaining dispensations on commission, and one of these, named Pelletier, published at Paris in 1677, under the royal imprimatur, a regular tariff of the sums for which in any given case a dispensation might be obtained. That the “urgent and just cause” was, in the circumstances, a very minor consideration was to be expected, and the enlightened pope Benedict XIV., himself a canon lawyer of eminence, complained “Dispensationem non raro concedi in Dataria, sine causa, nempe ob eleemosynam quae praestatur” (Inst. 87, No. 26). It may be added that the worst abuses of this system have long since disappeared. The bishops have their own correspondents at Rome, and one of the duties of the diplomatic representatives of foreign states at the Curia is to see that their nationals receive their dispensations without overcharge.
Bishops are by right (jure ordinario) competent to dispense in all cases expressly reserved to them by the canon law, e.g. in the matter of publication of banns of marriage. They possess besides special 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 abstinence, from simple vows, and with some exceptions from the prohibition of marriage within prohibited degrees.
Church of England.—By 25 Henry VIII. cap. 21. sec 2 (1534), it was enacted that neither the king, his successors, nor any of his subjects should henceforth 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 archbishop of Canterbury for the time being, who at his own discretion was to issue such dispensations, &c., 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 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 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 passing 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 Hinschius, Kirchenrecht (Berlin, 1883), iii. 250, &c.; article “Dispensation” by Hinschius in Herzog-Hauck, Realencyklopadie (Leipzig, 1898); article “Dispensation” in Wetzer and Welte’s Kirchenlexikon (2nd ed. Freiburg im Breisgau, 1882-1901); F. Lichtenberger, Encyclopédie des sciences religieuses (Paris, 1878), s.v. “Dispense”; Phillimore, Eccl. 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, however 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 malum in se, a principle of the canon law, but one difficult to reconcile with English legal principles, since no act is legally malum 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 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 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 in the past was admitted by the clause maintaining the validity of dispensations granted in a certain form before the 23rd of October 1689.
See Anson, Law and Custom of the Constitution, part i. “Parliament,” 3rd ed. pp. 311-319; F. W. Maitland, Const. Hist. of England (Cambridge, 1908), pp. 302, &c.; Stubbs, Const. Hist. ss. 290, 291. (W. A. P.)
- 1 In this quotation the word dispensatio still has its meaning of “economy”: “we are 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 medieval canon law.