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Dispensation in United Kingdom

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. You may read the entry about Dispensation in ecclesiastical law in the World legal Encyclopedia.

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. 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.

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 315 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.(1)

Resources

Notes and References

  1. Encyclopedia Britannica (1911)

See Also

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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  • Article Name: Dispensation
  • Author: International
  • Description: Ecclesiastical Law In the theory of the canon law the dispensing power is the corollary of the legislative, the authority [...]

This entry was last updated: October 25, 2016

Ecclesiastical Law



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