Page:EB1911 - Volume 08.djvu/331

 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 ).

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.

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