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.)
[1] 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.
DISPERSION (from Lat. dispergere, to scatter), the act or process of separation and distribution. Apart from the technical use of the term, especially in optics (see below), the expression particularly applied to the settlements of Jews in foreign countries outside Palestine. These were either voluntary, for purposes of trade and commerce, or the results of conquest, such as the captivities of Assyria and Babylonia. The word diaspora (Gr. διασπορά) is also used of these scattered communities, but is usually confined to the dispersion among the Hellenic and Roman peoples, or to the body of Christian Jews outside Palestine (see [Jews]).
| Fig. 1. |
Dispersion, in Optics. When a beam of light which is not homogeneous in character, i.e. which does not consist of simple vibrations of a definite wave-length, undergoes refraction at the surface of any transparent medium, the different colours corresponding to the different wave-lengths become separated or dispersed. Thus, if a ray of white light AO (fig. 1) enters obliquely into the surface of a block of glass at O, it gives rise to the divergent system of rays ORV, varying continuously in colour from red to violet, the red ray OR being least refracted and the violet ray OV most so. The order of the successive colours in all colourless transparent media is red, orange, yellow, green, blue, indigo and violet. Dispersion is therefore due to the fact that rays of different colours possess different refrangibilities.
| Fig. 2. |