[1] The etymology of this word has been confused by the early
adoption into English usage of the O. Fr. _bordel_. The two words are
in origin quite distinct. Brothel is an O. Eng. word for a person,
not a place. It meant an abandoned vagabond, one who had gone to ruin
(_abreothan_). _Bordel_, on the contrary, is a place, literally a
small hut or shelter, especially for fornication, Med. Lat.
_bordellum_, diminutive of the Late Lat. _borda_, board. The words
were early confused, and brothel-house, bordel-house, bordel or
brothel, are all used for a disorderly house, while bordel was
similarly misused, and, like brothel in its proper meaning, was
applied to a disorderly person.
DISPATCH, or DESPATCH, to send off immediately, or by express;
particularly in the case of the sending of official messages, or of the
immediate sending of troops to their destination, or the like. The word
is thus used as a substantive of written official reports of events,
battles and the like, sent by ambassadors, generals, &c., by means of a
special messenger, or of express correspondence generally. From the
primary meaning of the prompt sending of a message, &c., the word is
used of the quick disposal of business, or of the disposal of a person
by violence; hence the word means to execute or murder. The etymology of
the word has been obscured by the connexion with the Fr. _depecher_, and
_depeche_, which are in meaning the equivalents of the Eng. verb and
substantive. The Fr. word is made up of the prefix _de-_, Lat. _dis-_,
and the root which appears in _empecher_, to embarrass, and means
literally to disentangle. The Lat. origin of _depecher_ and _empecher_
is a Low Lat. _pedicare_, _pedica_, a fetter. The Fr. word came into
Eng. as _depeach_, which was in use from the 15th century until
"despatch" was introduced. This word is certainly direct from the Ital.
_dispacciare_, or Span, _despachar_, which must be derived from the Lat.
root appearing in _pactus_, fixed, fastened, from _pangere_. The _New
English Dictionary_ finds the earliest instance of "dispatch" in a
letter to Henry VIII. from Bishop Tunstall, commissioner to Spain in
1516-1517.
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
[Greek: oikonomia], 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 Jaffe, _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.[1] 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 Papste_, Nordlingen, 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 expeditionnaires_) 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, _Encyclopedie 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.)