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 DISPENSATION

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DISPENSATION

(Montrenil-sur-Mer, 1895). Ill, art. iii; Sixn-LEiTNEa, Prided. Jut. Can. (Ratisbon. 1899). IV. 66-75; A-VDRE-WiGNEK, Em- pichemenia de mariage in Did. de droit canon. ^3rd &i.. Pari*; 1901). 84-86: Becker, De Sponsal. el ilalrimonio (Bnissels. 1896). 214 sqq.; XoLDlx. De Sacramentii (Innsbruck. 1906), 698 sqq.; Pctzeb, C ommenlarium in Apost. Facul. (New York. 1898), 379 sqq.; Irish Eccl. Record. Series III. vol. X (18S9>, 924 sqq.; Collectanea S. Cong, de Prop. Fide (Rome, 1907), index, s. v. Dispariias.

P. M. J. Rock.

Dispensation (Lat, dispensatio), an act whereby in a particular case a lawful superior grants relaxation from an existing law. This article will treat: I. Dis- pensation in General; II. Matrimonial Dispensations. For dispensations from vows see Vows and Religious Orders; and from fasting and abstinence, Fast, Ab-

STIXENXE.

I. DisPEXs.\TioN IN Gexeral. — ^Dispensation differs from abrogation and derogation, inasmuch as these sup- press the law totally or in part, whereas a dispensation leaves it still in vigour; and from epikeia, or a favoura- ble interpretation of the purpose of the legislator, which supposes that he did not intend to include a particular case within the scope of his law, whereas by dispensation a superior withdraws from the power of the law a case which otherwise would fall iinder it. The raison d'etre for dispensation lies in the nature of prudent administration, which often counsels the adapting of general legislation to the needs of a partic- ular case by way of exception. This is peculiarly true of ecclesiastical administration. Owing to the uni- versaUty of the Church, the adequate obser\-ance by all its members of a single code of laws would be very difficult. Moreover, the Di\-ine purpose of the Church, the welfare of souls, obhges it to reconcile as far as possible the general interests of the community with the spiritual needs or even weaknesses of its in- di\-idual members. Hence we find instances of eccle- siastical dispensations from the very earhest centuries ; such early instances, however, were meant rather to legitimize accomplished facts than to authorize before- hand the doing of certain things. Later on antecedent dispensations were fretjuently granted; as early as the eleventh century Yves of Chartres. among other canonists, outlined the theory on which they were based. With reference to matrimonial dispensations now common, we meet in the sixth and seventh cen- turies -n-ith a few examples of general dispensations granted to legitimize marriages already contracted, or permitting others about to be contracted. It is not, however, until the second half of the eleventh century that we come upon papal dispensations affecting in- di%'idual cases. The earliest examples relate to al- ready existing unions; the first certain dispensation for a future marriage dates from the beg innin g of the thirteenth century. In the sixteenth century the Holy See began to give ampler faculties to bishops and missionaries in distant lands; in the seventeenth cen- tury such privileges were granted to other countries. Such was the origin of the ordinarj' faculties (see Faculties, Canonical) now granted to bishops.

(1) Kinds of Dispensation. — (a) A dispensation may be explicit, tacit, or implicit, according as it is mani- fested by a positive act, or by silence under circum- stances Amounting to acquiescence, or solely by its connexion with another positive act that presupposes the dispensation, (b) It may be granted in joro in- terna, or in foro eiterno, according as it affects only the personal conscience, or conscience and the community at large. Although dispensations in fnro inlerno are used for secret cases, they are also often granted in public cases; hence they must not be identified with dispensations in cn.<ni orculto. (c) .K dispensation may be either direct or indirect, acconling as it affects the law directly, by suspending its operation, or indirectly, by modifying the object of the law in such a way as to withdraw it from the latter's control. For instance, when a dispensation is granted from the matrimonial

impediment of a vow, the pope remits the obligation resulting from the promise made to God, consequently also the impediment it raised against marriage, (d) A dispensation may be in forma graliosA, in forma com- missa, or in forma commissa mixta. Those of the first class need no execution, but contain a dispensation granted ipso facto by the superior in the act of sending it. Those of the second class give jurisdiction to the person named as executor of the dispensation, if he should consider it ad\Tsable; they are, therefore, favours to be granted. Those of the third class com- mand the executor to deUver the dispensation if he can verify the accuracy of the facts for which such dispen- sation is asked; they seem, therefore, to contain a favour already granted. From the respective nature of each of these forms of dispensation result certain important consequences that affect del^ation, ob- reption, and revocation in the matter of dispensations (see Delegation; Obreption; Revocation).

(2) The Dispensing Power. — It hes in the very no- tion of dispensation that only the legislator, or his lawful successor, can of his own right grant a dispensa- tion from the law. His subordinates can do so only in the measure that he permits. If such communication of ecclesiastical authority is made to an inferior by reason of an office he holds, his power, though de- rived, is known as ordinary. If it is only given him by way of commission it is known as delegated power. When such delegation takes place through a perma- nent law, it is known as delegation by right of law. It is styled habitual, when, though given by a particular act of the superior, it is granted tor a certain period of time or a certain number of cases. Finally, it is called partic- ular if granted only for one case. When the power of dispensation is ordinary it may be delegated to another unless this be expressly forbidden. When it is dele- gated, as stated above, it may not be subdelegated unless this be expressly permitted ; exception is made, however, for delegation ad uni)er.ntiilem causarum, i. e. for all cases of a certain kind, and for delegation by the pope or the Roman Congregations. Even these exceptions do not cover delegations made be- cause of some personal fitness of the delegate, nor those in which the latter receives, not actual jurisdic- tion to grant the dispensation, but an appointment to execute it, e. g. in the case of dispensations granted in formA commissa mixta (see above).

The power of dispensation rests in the following persons: (A) The Pope. — He cannot of his own right dispense from the Di\Tne law (either natural or posi- tive). When he does dispense, e. g. from vows, oaths, imconsummated marriages, he does so by derived power communicated to him as Vicar of Christ, and the limits of which he determines by his magisterium, or authoritative teaching power. There is some di- versity of opinion as to the nature of the fKjpe's dis- pensing power in this respect ; it is generally held that it operates by way of indirect dispensation: that is, by Wrtue of his power over the wills of the faithful the pope, acting in the name of God, remits for them an obligation resulting from their deliberate consent, and therewith the consequences that by natural or positive Divine law flowed from such obligation. The pope, of his own right, has fuU power to dispense from all ecclesi- astical laws, whether universal or particular, even from the disciplinary decrees of oecumenical councils. Such authority is consequent on his primacy and the fullness of his immediate jurisdiction. A part of this power, however, he usually communicates to the Roman Congregations.

(B) The Bishop. — Of his ordinary right, the bishop can dispense from his own statutes and from those of his predecessors, even when promulgated in a diocesan synod (where he alone is legislator). From the other laws of the Church he cannot dispense of his own right. This is evident from the nature of dispensa- tion and of diocesan jurisdiction. A principle main-