Sect. 4. Dispensation.

RULE IV.

The Legislator hath Authority to dispense in his own Laws, for any Cause, that himself prudently shall judge to be reasonable, so that no distinct Interest be prejudiced or injured.

1. DISPENSATION differs from interpretation of laws; because this does declare the law in certain cases not to bind; but dispensation supposes the law in actual obligation, not only in general, but in this case, and to this person; and it is but like the old man's (in the fable) laying aside his burden of sticks, which he is bound to carry with him to his long home, unless some friendly person come to help him. But dispensation differs from diminution of laws by a ceasing or a contrary reason; because the law ceases, of itself, in this case, but, in dispensation, wholly by the will of the prince. And lastly, it differs from equity, because equity is law, 'melior lex,' but dispensation is a remission of the law; and the cases of equity are such, as by justice must be eased; but, in dispensations, there is nothing but benignity and favour. So that 'dispensation is a voluntary act of the prince's grace and favour, releasing to any single person or community of men the obligation of the law, others at the same time remaining bound, not only in other cases, but in the same and in the like.' For although the same and the like cases of equity do procure remission to all alike, yet in dispensations it is not so. One may be eased, and another not eased, in the very same case. And the not understanding or not considering this great and material difference, hath caused so great errors both in the understanding and in the ministries of dispensation.

2. For if we use the word improperly, dispensation can signify a declaration made by the superior, that the subject, in certain cases, is not obliged, that the lawgiver did not intend it. But this is interpretation of laws, or a declaration of the equitable part of the law, and is not properly an act of authority, but of doctrine and wisdom; save only, that that doctrine and that wisdom shall be esteemed authentical, and a warranty in doubtful cases: but if the subject did know the meaning of the law, as in most cases he may,-his conscience is, of itself and by the intention of the law, at liberty without any such declaration; for that liberty is from an intrinsic cause, that is, from the natural equity and reasonableness of the case, and therefore claims nothing, but what the law intends and ought to intend in its very sanction. Now in these cases to require dispensation, is to ask more than is needful; it is as if one should desire his friend to untie his girdle, when his clothes hang loose about him: he needs it not; but that the wisdom and charity of the law is made an artifice to get money, and to put the subject to scruples and trouble, that he may get his ease.

3. But when dispensation signifies properly, it means an act of mere grace and favour, proceeding from an extrinsic cause; that is, not the nature of the thing, or the merit of the cause, but either the merit of the person, or some degrees of reasonableness in the thing; which not being of itself enough to procure the favour of the law, is of itself enough to make a man capable of the favour of the prince; and if this be authority enough, that is reason enough. For since dispensation is an act of mere jurisdiction, and not of doctrine or skill, and wisdom and law, that is, it is not declarative of something already in being, but effective of a leave, which is neither unreasonable nor yet due, so that it is not an act of justice but of mercy and favour upon a fair and worthy occasion; -it must follow that the reason and causes of dispensation must be such, as are not necessary; but probable and fit to move a prince they must be, lest he do an unreasonable act.

4. All those disputes, therefore, amongst the civil and canon lawyers and the divines, whether the prince sins in dispensing without just cause, or the subject in desiring it or using it without just cause; -whether if the cause be not that, which they are pleased to call just, the dispensation be valid, and very many more, are inquiries relying upon weak grounds, and tending to no real purpose. For since the cause need not be necessary, but probable, it will be very hard if the prince can find out no probable reason for what he does; and harder yet to imagine, that he should do it at all, if he have not so much as a probable reason why he does it. And since the reason of dispensation is extrinsic to the cause or matter in hand very often, or else but occasioned by the matter in hand, as most commonly it is in wise and good governments, it will be impossible but that the prince will have reason enough to do an act of kindness in his own affairs and matters of his own disposing: the prince's will being enough to satisfy us, and any good reason within or without, being sufficient for him if it does move and determine his will,-the consequent will be, that the conscience ought to be at rest, without curious inquiry into the cause, if it have a dispensation from a just and competent authority.

5. And indeed, it is not easy that the prince can be reproved for the insufficiency of the cause of dispensation: for a dispensation is not necessary to the conscience at all, when the cause itself is great and sufficient for equity; but then it is necessary for the avoiding of scandal or civil punishments in some cases, that there be a declaration of liberty and equity: but to dispense is only then. proper and a fitting ministry, 1. When the law is still useful and reasonable to one or more good purposes, but accidentally becomes an impediment of a greater good; or, 2. When it is doubtful, whether the cause of equity and legal remission, without asking leave, be sufficient; for in this case, if the superior dispenses, he supplies by favour what is wanting in the merit of the cause, and makes the conscience sure, when the question itself was not sure;-or, 3. To reward a virtue, or the service of a worthy person, or to do honour or favour, mercy and benignity, upon the occasion of any reasonable consideration. These being all the causes of proper dispensations, it will be hard that every thing of this should be wanting, or that what moves a prudent prince to do it, should, by the subject, not be thought sufficient, especially since no man is judge of it, but he that does it: and therefore he that says the dispensation was for an insufficient cause, hath no sufficient cause to say it; it may be evil in the manner, or in the excess, or in the event, but not in the moving cause; because a little cause is sufficient, and therefore a little cause cannot suffice to blame it. "Nullius sensus esse præsumitur, qui sensum vincat principalem." The subject's opinion can never overcome the opinion of the prince in those things, where the prince is judge.

Lib. fin. cap. de Legib.

6. There is only this to be added, that he, that dispenses with a law to particular persons, be careful that it be in a matter wholly in his own power, and make no intrenchment upon religion so much as collaterally, so far as he can perceive, nor yet that any man be injured by it. And, therefore, if a prince dispenses with any one in the matter of tribute, he must abate it from his own rights, and not lay it upon others, to their considerable and heavy pressure. If it be inconsiderable, no man is to complain, but to indulge so much to the prince's reason and to the man whom the king will honour; but if it be considerable and great, the prince ought not to do it, but upon such a reason which may repay the private burden by the public advantage: and the reason of this is not, because the supreme power cannot dispense with his own laws without great cause, but because he cannot dispense with other men's rights. And therefore when, by the laws of Christendom, the tithes were given to the curates of souls, of all the fruits arising in their parishes,it was unjustly done of the pope to exempt the lands of the Cistertians and some other orders from paying that due to the parish-priest: for though he that hath a just power, may use it for the benefit of his subjects, yet he may not use the rights of others and give away that which is none of his own, to ease one and burden another. In cases of public necessity, this may be done,-but not for pleasure, or a little reason. And therefore dispensations must be sparingly granted; because, if they be easy and frequent, they will oppress by their very numbers. "Dispensationum modus nulli sapientum displicuit," said the canon lawd. That which is but seldom and in small things, or in little degrees, will be of no evil effect; and that which may greatly profit one or two, will be no burden to a commonwealth: but if it be often done, and to many, it may be of evil consequent, and therefore ought not to be done, but upon a cause so weighty, that the good effect of the cause may prevail upon the pressure of the dispensation: for though this may be a favour to one or to a few, yet it is justice to all. But if the dispensations be in matters of government, or censures, or favours and mere grąces, where some are benefited and no man is injured, as in taking off irregularities, personal burdens which

Cap. q. 7.

return to no man's shoulders, in giving graces beyond the usual measures of laws, dispensations in time, in solemnities of law, giving what by law could not be claimed;-in these and the like, the prince as he hath supreme power, so his good will being moved by any reasonable inducement is warrant enough for him that gives it, and for him that uses it.

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Sect. 5. Commutation.

RULE V.

The same Power that can dispense, can also commute, a Duty; and as, in the first, it eases, so, in the latter, it binds, the Conscience.

1. COMMUTATION is nothing but a kind, or rather a particular manner of dispensation; and therefore hath in it no particular consideration differing from the former, but only such prudential advices as are useful to the ministry and conduct of it.

2. For commutation is a changing of the burden of the law into an act of it: it may be a greater usefulness but a less trouble. Thus when a public penance is enjoined to a lapsed person, who, by a public shame, would be hardened or oppressed, the church sometimes dispenses in the obligation, and changes it into alms, " ut solvat in ære, quod non luit in corpore," that the fruit of his labours may go for the sin of his soul, and an expensive alms may be taken in recompense of his exterior humiliation.

3. But this must be done so as may be no diminution to religion, or to add confidence to the vices of great persons, who spend much more in the purchases of their lust than in the redemption of their shame, and therefore think they escape with their sin, when they enjoy it at a price.

4. It must be done never but upon considerations of piety and great regard; not because the sinner is powerful or rich: for though in matters of commutative justice neither the rich man is to be regarded for his riches, nor the poor man for his poverty; yet, in matters criminal and of distributive justice, the rich man is less to be eased, when the indulgence