Definition
Latin: "notwithstanding." Non obstante is a clause, phrase, or formula appearing in legal instruments — historically in royal letters patent, statutes, and grants — that operates to override or preclude a contrary legal restriction. The effect is to authorize something that would otherwise be prohibited, suspended, or limited by existing law or prior enactment.
The term carries two distinct but related applications:
1. The royal dispensing power. In English constitutional history, non obstante described the mechanism by which the Crown granted a license permitting a named individual to act contrary to a statute. The clause would appear in letters patent or royal grants, signaling that the king's authority was interposed to suspend the statute's operation as to that person.
2. A drafting formula in instruments generally. Beyond the royal context, non obstante (or its English equivalent, "notwithstanding") appears in public and private instruments as a pre-emptive clause intended to resolve conflicts within the document or between the document and external authority. In this sense it declares that the provisions following the clause shall govern even if inconsistent with something else.
Common Language
Modern common usage (Wiktionary): "A clause in old English statutes and letters patent, designating a licence from the Crown to do a thing notwithstanding any laws to the contrary."
Historical common usage (Webster's 1913): "Notwithstanding; in opposition to, or in spite of, what has been stated, or is to be stated or admitted. A clause in old English statutes and letters patent, importing a license from the crown to do a thing notwithstanding any statute to the contrary."
The common sources capture the clause's surface mechanics but flatten its constitutional significance. In legal usage, non obstante is not merely a synonym for "notwithstanding" — it names a specific, historically contested power over law itself. The royal dispensing power it embodied was a serious constitutional battleground, ultimately abolished by the Bill of Rights 1689. Modern drafting use of "notwithstanding" language is the functional descendant of this form, but researchers should not read backward from modern boilerplate into historical sources without accounting for that constitutional dimension.
Common Confusion
Non obstante is sometimes loosely grouped with "saving clauses" or "notwithstanding clauses" in modern drafting commentary. These are related but not identical. A saving clause preserves prior rights or laws from repeal; a notwithstanding clause establishes priority among conflicting provisions within a document. Non obstante in its original sense did something more radical: it suspended the operation of law entirely as to a specific party. Collapsing these into a single category will cause misreading of historical sources.
Non obstante veredicto (JNOV — judgment notwithstanding the verdict) borrows the phrase but is a procedurally distinct concept. The two should not be conflated; see RELATED TERMS.
Why It Matters in Research
Researchers encountering non obstante in historical sources must first determine which function the clause is performing — royal dispensation or ordinary drafting priority — because the legal, constitutional, and remedial consequences are entirely different.
Sources predating 1689 that reference non obstante in connection with letters patent or royal grants are invoking the dispensing power that Parliament abolished with the Bill of Rights. Those sources cannot be read as authority for any continuing practice; the doctrine was constitutionally extinguished. Rapalje & Lawrence notes explicitly that "the doctrine of non obstante... set" — the text cuts off in the corpus, but the reference points toward the Bill of Rights limitation. Bouvier's adds the malum in se / malum prohibitum distinction, which is important: even at its peak, the dispensing power was understood to have limits (the Crown could not dispense with offenses wrong in themselves, only with statutory prohibitions).
In equity and chancery materials, non obstante clauses in private instruments — deeds, settlements, grants — require attention to whether the clause purported to override statutory requirements. Courts scrutinized such clauses with varying tolerance depending on what they were attempting to override.
In modern legal drafting contexts, researchers will encounter "notwithstanding any other provision" language that is the functional descendant of the non obstante form. This usage is prevalent in contracts, legislation, and international instruments. Historical dictionary entries are of limited utility for interpreting modern notwithstanding clauses; modern interpretive doctrine governs.
Corpus trap: The Latin form non obstante will appear in historical English legal sources; the anglicized "notwithstanding" clause in modern sources. A full picture of the concept's evolution requires searching both forms across time periods.
Historical Dictionary Support
All five source dictionaries agree on the Latin translation ("notwithstanding") and on the core historical function: a royal license authorizing action contrary to statute. Burrill and both editions of Black's are nearly identical in their framing, suggesting a common line of derivation — Burrill's language appears to be the source Black's adopted.
Bouvier's contributes the most analytically useful material, distinguishing between offenses malum in se (which the Crown could not dispense with) and mala prohibita (which it could, in specific cases and for specific persons). This distinction is essential for reading equity cases and constitutional history materials that debate the dispensing power's scope.
Rapalje & Lawrence adds the reference to Plowden and Reeves, flagging the doctrine's development and its eventual limitation — though the corpus entry is truncated before that discussion concludes. Researchers should consult the full Rapalje & Lawrence entry and the cited sources for the doctrine's pre-Bill of Rights trajectory.
What the historical dictionaries largely omit: the procedural vehicle of non obstante veredicto, which uses the same Latin phrase in a completely different context (post-verdict judicial relief). Only a researcher who already knows to look for this connection will find it by following the historical dictionary entries alone.
Jurisdictional Note
The royal dispensing power was an English constitutional doctrine abolished by the Bill of Rights 1689 and has no continuing force in English or American law. However, the "notwithstanding clause" as a drafting form has independent life in both common law jurisdictions. In Canadian constitutional law, the notwithstanding clause (Section 33 of the Charter) is a major structural feature with its own body of doctrine — a distinct development that shares only the surface form with the historical non obstante.