Dispensation

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Dispensation

Dispensation

a term with two main applications:

  • to the action of administering, arranging or dealing out, and
  • 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 ?????????, 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, etc. (1)

Dispensation in the Ecclesiastical Law

In 1918, in the book “A Commentary and Summary of the New Code of Canon Law”, the author, Rev. Stanislaus Woywod wrote (references were to the old Code of Canon Law, no the 1983 Code of Canon Law):

  • Dispensation, which is the relaxation of a law in a particular case, can be granted by the law-giver, by his successor or his superior, and by those whom they have delegated. (Canon 80.)
  • From the general laws of the Church, Ordinaries inferior to the Roman Pontiff cannot dispense, not even in a particular case, unless this power has been conceded to them implicitly or explicitly, or when recourse to the Holy See is difficult and there is at the same time danger of causing great harm by the delay, and the case is one in which the Holy See usually dispenses. (Canon 81.)
  • Bishops and other local Ordinaries can dispense from diocesan laws, from the laws of Provincial and National Councils; but they cannot dispense from laws which the Roman Pontiff has published for a particular country or diocese, except in cases indicated in the preceding Canon. (Canon 82.)
  • Pastors cannot dispense either from a general law of the Church nor from special laws of country or diocese, unless this power has expressly been conceded to them. (2)
  • Dispensations from the law of the Church should not be given without a just and reasonable
    cause, which should be in due proportion to the gravity of the law from which dispensation is granted. (3)
  • Dispensations must be interpreted according to Canon 50, and also the faculties to grant
    dispensations must be strictly interpreted. (Canon 85.)
  • Dispensations extending for some length of time cease not only for the same reason as a
    privilege, but also whenever it is certain that the reason for the dispensation has entirely ceased to exist, e. g., dispensation from reciting the Divine Office, fast, etc., in case of ill health, when the dispensation ceases of itself after complete recovery, (Canon 86.)

History

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” (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). Dispensations from the observance 314 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, 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. You may read the entry about Dispensation in the church of england in the UK legal Encyclopedia.

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. You may read the entry about Dispensation in constitutional law of england in the UK legal Encyclopedia.

Resources

Notes

  1. Encyclopedia Britannica (1911)
  2. By custom introduced from time immemorial and confirmed by Canon 1245, pastors can dispense their parishioners in individual cases from the fast and abstinence and from the law forbidding servile work on Sundays and holidays of obligation. (Canon 83.)
  3. Dispensations granted by an inferior without just cause are both illicit and invalid, while the law-giver himself may always validly dispense from his laws, though also he sins by dispensing a subject from the law without a good reason. When it is doubtful whether the reason for a dispensation is sufficient, the individual is allowed to ask for the dispensation and the superior may validly and licitly grant the same. (Canon 84.)
  4. Encyclopedia Britannica (1911)

See Also

  • Rescripts
  • Ecclesiastical Laws
  • Canon Law
  • Code Development
  • Church and State
  • Concordat
  • Law of the Twelve Tables
  • Ancient Codes
  • Orthodox Canon Law
  • Early Roman Law
  • Ecclesiastical Courts Origins

Further Reading

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.

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.

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