II. On the Author of Law

Who generally can make laws? - Since God is Lord of all, and has ordered obedience to superiors not only ecclesiastical but also civil, not only he himself, but they also can make laws. L. 140. Hence several laws are distinguished:

Eternal law, which is: The eternal reason and will of God commanding the natural order to be preserved and forbidding it to be disturbed. S. Aug. l. 22 Contra Faustum c. 27. It is the beginning and foundation of every law; for from it flows natural law, and from natural law the remaining laws take their force and norm. Cf. S. Th. 1. 2. q. 91. a. 1, q. 93, q. 95 a. 2, q. 96. a. 4; Wirceburg. De Legib. c. 1. a. 2.

Natural law, which is the eternal law of God promulgated to men through right reason, by which we discern what is good and what evil, the good to be done and evil to be avoided. Therefore the object of this law is that which is per se and intrinsically good or evil. In it are distinguished the first principles of morals, immediate conclusions, and mediated conclusions. Cf. S. Th. 1. 2. q. 91. a. 2. 6, q. 94; L. 102; Wirceburg. l. c. a. 3. 4. 6.

Divine law, which is law given by God through revelation. It is twofold; for one is contained in the Old Testament, the other in the New Testament. The Old Testament contained ceremonial, judicial, and moral precepts. Only the moral precepts remain to be observed today, the rest having been abrogated by the New Law. Matt. 19:17; 1 Cor. 7:19. The New Testament, besides counsels, contains precepts of catholic faith, morals, sacraments, sacrifice, and ecclesiastical hierarchy. The moral precepts are those very things which stand by natural right, and the law of the unity and indissolubility of marriage is that which, enacted from the beginning of the world, was confirmed by Christ. Matt. 19:4 seq. Cf. S. Th. 1. 2. q. 91. a. 4. 5, q. 98-108; L. 103. - The legal precepts of the Old Testament, or ceremonies, sacred things, sacrifices, sacraments of the Mosaic Law, all ceased after the Gospel was promulgated, nor can they be observed without sin. Eugene IV, B. Cantate Domino. - Wirceburg. l. c. c. 2.

Canon and civil law. The former is from ecclesiastical power, and it touches those things in the Church which regard the salvation of souls. The latter is from civil power, and moderates rights and obligations between citizens and citizens; between citizens and society and its Prince; between nation and nation. Whence private, public, and international or law of nations arises. C. 1. 13 de Const., C. 2 e. t. in 6; Inst. l. 1. t. 1. 2, l. 2. t. 1. § 11; L. 2 de Origine Iuris etc. §§; S. Th. 1. 2. q. 91. a. 3, q. 95, 2. 2. q. 57; Wirceburg. l. c. c. 3; E. M.

But the law of nations can be taken otherwise, namely insofar as it is distinguished from civil law. Appositely S. Th. 1. 2. q. 95. a. 4 says: "It belongs to the notion of human law that it be derived from the law of nature, and according to this positive law is divided into the law of nations and civil law. For to the law of nations pertain those things which are derived from the law of nature as conclusions from principles, such as just purchases, sales, and other things of this kind, without which men cannot live together with one another; which is of the law of nature, because man is naturally a sociable animal. But those things which are derived from the law of nature by way of particular determination (of certain common things, a. 2) pertain to civil law, according as any city determines something suitably to itself." And thus likewise that one must not kill pertains to the law of nations; for it is derived as a conclusion from the fact that evil must be done to no one. To punish the criminal with such or such a penalty pertains to civil law; for it is a determination of the common law of nature, that he who sins be punished. S. Th. ib. a. 2. "And therefore Caius the jurist says, L. 9 ff. De Iust. et iure: What natural reason has constituted among all men, that is preserved equally among all, and is called the law of nations." S. Th. 2. 2. q. 57. a. 3. Hence the law of nations embraces not only those things which are imposed by the very necessity of nature, as the division of goods, but also those things which flow from a certain highest suitability of nature, and which therefore are preserved by all through use and custom, by a certain implicit compact, or, when doubts arise, by an explicit compact, such as to enter a foreign region, unless danger arises from it for that region; free navigation of every sea; mutual commerce among peoples; transmission of letters; abolition of servitude, etc. - But positive law more determinately defining the various relations to be observed among nations will be able better to be called international law.

180 bis. Note: Natural law is altogether immutable, since it regards those things which by their nature are good and by their nature are evil. Against this immutability, as is clear, certain things permitted by God have no force, which because of peculiar circumstances were no longer opposed to the right order, as, for example, polygamy permitted to the patriarchs, dissolution of marriage, etc.; or were not opposed to that order because the matter is subject to divine dominion, as theft once permitted to the Hebrews. But change is not had as regards the precepts of natural law which are called primary, without which the order of things cannot exist, as, for example, the honor due to God, subjection in man of the lower part to the higher, etc.; but only as regards those precepts which are called secondary, and which regard not the very being of the order, but the perfection of the order, as, for example, the marriage of brothers and sisters permitted to the first parents. - S. Th. 1. 2. q. 100. a. 5; Wirceburg. De Legib. c. 1. a. 5.

Canon Law: The collection of canonical laws constitutes Canon Law. Yet some canonical laws are contained in the Corpus Iuris, others are outside it. The Corpus Iuris contains three Parts. The first part contains the Decree of Gratian, a Benedictine monk, around the year 1150, in which, in a threefold part, under the title on Distinctions, on Causes, on Consecration, there is treated successively of ecclesiastical persons, ecclesiastical judgments, and sacred things. This collection is not authentic; therefore the individual texts have and retain their force from themselves, not from the collection. The second part contains the Decretals by S. Raymond of Pennafort, of the Order of Preachers, in the year 1234, in which likewise, in five books, there is treated successively of persons, judgments, things, marriage, and penalties. This collection, completed and published by order of Gregory IX, is authentic, and therefore the laws contained in it have the force of universal laws from the very fact of insertion into it. The third part contains the sixth book of the Decretals, so called because it was added to the five books of the Decretals of Gregory IX. It was published by the authority of Boniface VIII in 1298; therefore the collection is authentic, and proceeds in the same order as the Decretals of Gregory. This third part also contains the Clementines and Extravagantes. The Clementines are so called from Clement V, who after the Council of Vienne, over which he himself presided in 1311, ordered the Constitutions issued by himself and by the same Council of Vienne to be collected. Therefore this too is an authentic Collection. It is divided into five books. This same third part contains the Extravagantes of John XXII and the Common Extravagantes. The former are constitutions issued in the earlier years of the pontificate of the aforesaid Pontiff. The latter are other Constitutions issued by John XXII and by other Pontiffs, divided into five books. Although all those Constitutions are genuine, nevertheless they do not constitute an authentic Collection. The other Constitutions that are present, besides these, of the Council of Constance, of Trent, and of the Vatican, and also of the Supreme Pontiffs, issued afterward, were not collected into the Corpus Iuris.

Civil Law: Roman Law is contained in the Corpus of Civil Law issued by order of Justinian in the 6th century. It embraces four parts: the Institutes of Justinian, divided into four books, which are subdivided into titles and paragraphs; the Pandects, which comprehend selected responses of jurists, to which the force of law was attributed, also called the Digest or Digests, because they contain legislation arranged in order, and are divided into fifty books, which are subdivided into titles and laws; the New Code, or repeated lectures, that is, in a second edition or publication, C. Cordi nobis, Nov. 16, 534, which contains twelve books, subdivided into titles and laws, and embraces the constitutions of Princes; the Novels, or Constitutions issued after the Code, which are not all of Justinian himself, and are genuine, although their Collection is not authentic as the three preceding parts are. Modern law is contained in modern Codes, which are divided into books, titles, and articles.

Who make laws in the Church? - The Church is a true and perfect society, plainly free, superior to civil society. It has power conferred on it by God not only of directing through counsels, but also of commanding through laws; nor does it enjoy only legislative power, but also judicial and coercive power. Its laws, independently of any civil power whatever, have force and oblige in conscience, and they do not only stand in matters of faith and morals, but also extend themselves to the discipline of the Church. Cf. E. M. 180. The Primacy of the Supreme Pontiff was instituted by Christ, and it is of divine right that Blessed Peter have perpetual Successors in that primacy. But the Roman Pontiff is the successor of Blessed Peter in the aforesaid primacy, not only of honor, but also of jurisdiction, over the universal Church. Likewise the Roman Pontiff is infallible when he defines a doctrine of faith and morals to be held by the universal Church. And he has supreme power of making laws for the whole Church, nor does he in any way violate the rights of Bishops by various reservations. Bishops have no power except one dependent on the Supreme Pontiff and subordinated to him. For the Church is not instituted nor administered in the manner of a republic. C. Si quis 2 de Maior., C. Ut animarum 2 de Const. in 6. Legates also make laws in their Provinces, but in the name and by the authority of the Supreme Pontiff. C. Nemini 10 de Off. legati. Legates are those who are deputed by the Supreme Princes for handling more grave affairs, or a generality of affairs.

A General Council is principally composed of all the Bishops of the catholic world. It can make laws for the whole Church. But its Decrees, in order to have force, must be confirmed by the Roman Pontiff. - A Provincial Council is principally composed of the Bishops of some province, with the Metropolitan presiding. From the Council of Trent it would have to be held every three years. It makes laws for the Province. Its Decrees are to be reviewed by the S. C. C. But they are approved in common form, so that they acquire nothing of new right; and in specific form, so that they become pontifical laws. Sixtus V, C. Immensa aeterni; Pius X, C. Sapienti concilio, Ord. serv. in R. C., special norms c. 7. a. 4 par. 6. But the Metropolitan can promulgate them by public edict. Nor indeed do the Decrees of Councils, whether plenary or provincial, lack their force unless they have been incorporated into diocesan statutes. S. O. Sept. 10, 1896. Bishops make laws in their own dioceses, namely after they have been canonically instituted in their own dioceses, Apostolic letters having been expedited and exhibited, C. Iniunctae de Elect. Extrav. Comm.; C. of Pius IX Romanus Pontifex. For they are true Rulers in their dioceses, Acts 20, 28. But a power of this kind is necessary for the right administration of the diocese. Hence Bishops can indeed make laws, each for his own diocese, even without the consent of the chapter, unless however the question concerns those things which can yield to the prejudice of the chapter or clergy. C. Novit 4, C. Quanto 5 de His quae fiunt a prael. Nevertheless the custom has prevailed that, unless it has been expressly provided otherwise, those things which a Bishop decrees outside synod, the chapter not having been consulted, do not have the force of law, but of a simple statute, which consequently ceases when the right of the Bishop ceases, by death, translation, abdication. But statutes of the Bishop, even outside synod, yet made and promulgated after the counsel of the chapter has been heard, according to the truer opinion, have the same perpetuity as Synodal Constitutions. Bishops can decree nothing against the laws of the Pontiff, nor in matters reserved to the Holy See, since an inferior does not have jurisdiction over a superior. Bened. XIV De Syn. l. 12. c. 5. n. 1, l. 13. c. 5; L. 104, l. 7. n. 6. Archbishops and Patriarchs cannot make laws for the dioceses of suffragans, because they are not superiors properly so called, although they can settle their disputes brought before them. - L. 105; Struggl q. 2. n. 6; E. M.

Can others also besides the Supreme Pontiff and Bishops establish laws? - A Cardinal can, by reason of his dignity, make laws in the Church of his Title. C. His quae de Mai. et obed., C. Querel. de Elect., C. of Innocent XII Romanus Pontifex, Sept. 17, 1692. But the College of Cardinals, when the Roman See is vacant, if necessity does not urge, cannot make laws; rather it must immediately apply itself to the nomination of another Pontiff. Clem. 2 de Elect., C. 3 de Elect. in 6; Pius X, C. Vacante Sede, Dec. 25, 1904, t. 1. c. 1-4.

Abbots and exempt Prelates can make laws for their territory, where they exercise quasi-episcopal jurisdiction; for legislative power is joined to jurisdiction. The cathedral chapter, when the See is vacant, can establish laws which would be necessary for various circumstances. For by right it succeeds to the jurisdiction of the Bishop. C. His quae 11, C. Cum olim 14 de Mai. et obed.; L. 104; Lugo Resp. Mor. l. 1. d. 21. n. 5. Chapters or General Congregations and Regular Prelates are able to establish true laws within the limits of their jurisdiction, according to the proper Constitutions of the Order. For they have statutes approved by the Supreme Pontiff, which grant them this faculty. Jurisdiction, namely granted by the Pope, but not by force of the vow, which, since it is personal, gives only the power of imposing precepts, but by no means of establishing law. Elbel 278-280.

Abbesses or Superiors of nuns cannot make laws properly so called, since they are not capable of ecclesiastical jurisdiction. Nevertheless they can exact obedience in conscience concerning things commanded, or concerning those things which conduce to the advancement of nuns according to the rules. For they have the right of commanding both from the vow of obedience emitted by the subjects and from the necessity of discipline which must be preserved in the community. Hence novices, although they are not bound to obedience strictly by force of a vow, which they have not emitted, are nevertheless in some way bound to obey by reason of regular discipline. For this reason "abbesses can make precepts for the right governance of the house, and even oblige under grave fault." L. 104. Cf. Schmalz. l. 1. t. 31. n. 38. 39; Elbel 281-284.

Pastors cannot establish laws. The reason is that they do not have jurisdiction in the external forum. Colleges can establish statutes for themselves, which bind their members as agreed compacts. Nevertheless the statutes of chapters in cathedral churches, etc., acquire the force of law from the approval of the Bishop. Bened. XIV De Syn. l. 13. c. 5. n. 1. If Chapters neglect to make their own Statutes, the S. C. C. commands Bishops that they themselves make Constitutions and enjoin them on the Chapter to be observed. Lucidi De Visit. SS. LL. V. 1. C. 3. § 4. n. 146. - E. M.

Who make laws in Civil Society? - The Prince or the people or both together, according to the varied form of government, make laws. In monarchical Governments, Princes who enjoy supreme power in civil society make laws. In representative Governments the power of making laws resides in the King, or in the President of the republic, and in the legislative Body constituted from Deputies, or also from Senators. Indeed secular Princes are true superiors in civil society, and that power is necessary for the right governance of civil society. Therefore there is no doubt that their laws can also oblige in conscience. L. 104; S. Th. 1. 2. q. 105. a. 1; E. M.

Note: 1. The Church, condemning liberalism, condemned errors averse to catholic doctrine, not certain forms of civil governments or political factions which are called liberal. S. O. Aug. 29, 1877. The will of the people publicly manifested by no means constitutes the supreme and independent law. A people sins by not receiving without any cause a law promulgated by the Prince. - Syll. prop. 39 seq.; E. M. 166. 168.

2. "The Supreme Pontiff will be able to abrogate or correct civil laws of other Princes if they are opposed to equity." L. 103. For although the Supreme Pontiff does not have direct power to establish all laws obliging in civil matters, but only in ecclesiastical matters, C. 13 de Iudiciis, C. 13 Qui filii sunt legitimi, nevertheless indirectly he has power also in this matter, insofar as he can correct civil laws harmful to the salvation of the faithful, and can supply the negligence of civil Princes, C. 1. 2 de Empt. et vend.; C. 1. 2 de Tregua et pace. And thus of ancient Roman Law "some civil laws are expressly approved by Canon Law, others expressly corrected, others neither approved nor reproved.... Approved laws without doubt oblige in conscience.... Corrected laws indeed do not oblige in conscience.... Those not reproved seem tacitly approved by Canon Law.... C. 1 de Nov. oper. nuntiat.... Likewise C. Super specula de Privil.... And Pope Gelasius, ep. 4 to Emperor Anastasius, wrote: As far as pertains to the orders of public discipline, the Bishops of religion themselves also obey your laws." L. 106. Understand these things not only of Roman Law, which once prevailed, but also of Civil Law which prevails at present. For the order of public discipline and the command of legitimate power are the reason why Roman Law is approved by Canon Law, and the same reason prevails in any well-ordered civil society. But Roman Law with Canon Law once constituted the Common Law, so called because for many centuries the whole world commonly used it.

3. "Certainly both the Church and the state each has its own principate; and therefore in managing its own affairs neither obeys the other, certainly within the limits constituted by the proximate cause of each. Yet from this it in no way follows that they are disjoined, much less fighting." Leo XIII, Enc. Sapientiae christianae, Jan. 10, 1880. Since each power is from God and tends to the same end, they foster one another. Hence, whenever the matter is common to each Law, Civil Law is supplied from Canon Law; and, on the contrary, what is lacking to Canon Law is supplied from Civil Law, C. 1 de Nov. op. nunc., not indeed Roman Law, which once prevailed, but that which now prevails; because each Law is mutually fostered for this reason, that each Power ought mutually to be fostered, certainly not the power which has ceased, but that which exists. Nevertheless Canon Law, when it takes interpretation from Civil Law, must be interpreted not from that which now prevails, but from Common Law; because it was established while that was commanding. - Leo XIII, Enc. Arcanum, Feb. 10, 1830, par. Nemo autem, Enc. Immortale Dei, Nov. 1, 1885; Pius X, Enc. letter to the Bishops of France Vehementer nos, Feb. 11, 1901, Enc. Letter Iamdudum in Lusitania, May 24, 1911; Bened. XIV De Syn. l. 9. c. 9 seq.; L. 104. 105. a 106; D'Annib. ed. 4. p. 1. n. 201; E. M.

Can tyrants make laws, so that these truly oblige? - Laws and sentences, in themselves honorable and just, made by a tyrant, oblige, whether he is such de facto, or by administration; or whether he is such de iure, or by title, but peacefully possesses the kingdom, and has not yet by prescription, by consent of the republic, by cession of the legitimate Prince, become himself a legitimate Prince. The reason is that the former has legitimate power, although he abuses it; the latter also has power, although usurped, and is bound to restore it to the legitimate Prince. For society cannot stand without some power, nor ought it ruin itself. He has power: whence this does not regard those who have usurped spiritual power. But peacefully, etc.; otherwise there is no obligation of obeying him, since he is not yet a true superior. - L. 94, H. A. tr. 8. n. 13; S. Th. 2. 2. q. 104. a. 6; Letter of Leo XIII Magna animi nostri, May 3, 1892. Cf. E. M. n. 705.

Note: The obligation of obeying the laws of a tyrant who has usurped power is founded on the necessity of preserving order in the community. But subjects can also perform certain things which yield to some utility of the tyrant, such as to pay certain tributes, keep watches, dig for the construction of a fortress, etc.; since these are works indifferent per se, and to refuse them would not profit the legitimate Prince, but would inflict most grave harms on the subjects themselves. But it will be altogether illicit to do other works which proximately and formally look to confirming the unjust usurpation and to inflicting damage on the legitimate Prince. La-Croix l. 2. n. 275.

You will resolve: If a tyrant is such by right or title, in the very act of invasion he can make no laws, nor is he to be obeyed, nor is it licit in any way to help or recognize him, so that he may acquire possession of the kingdom and be established in it. The reason is that the invasion gives him no right.

Whether custom has the force of law? - Custom, as it is considered materially, is a manner of acting introduced from frequent acts of the whole community, or of the greater part of the same. But formally it is a certain right constituted by morals, which is taken as law, even if law, namely written law, is lacking. Schmalz. l. 1. t. 3. n. 1. Custom has the force of law. This is clear: 1. From the common opinion of theologians. 2. From various places of either canon or civil Law, from which it is undoubtedly drawn that custom is to be held as law. Cf. tit. de Consuet.; L. 32. 33. 35. 36 de Legib.; C. I. 2. 580. 1654; C. G. a. 671. 3.

By reason; for, once a custom has been introduced, for example, against a law, the law no longer contributes to the common good; and on the contrary, once introduced beyond the law, the reason of the common good urges. - L. 107; S. Th. 1. 2. q. 97. a. 3, 2. 2. q. 79. a. 2 ad 2; Struggl q. 4. n. 28 seq.; Ithur. Cas. 53. n. 7; Bouix De Princip. p. 2. s. 6; Wirceburg. c. 5. a. 4. In the external civil forum generally, by reason of public order, no custom against law is usually admitted, neither past nor future, but only in certain matters determined by the law itself. C. I. preliminary law, year 1866, a. 48, art. 580. 1654, C. I. Comm. 1; C. H. 4 and Law May 11, 1888, a. 5. 6. 7; C. H. 5. 6; C. L. 9; C. G. 671; C. He. preliminary title a. 1. 5. But in canon law, since this Law chiefly regards the good of souls, custom has constantly been admitted, and is also admitted at present.

How manyfold is custom? - A threefold custom is usually distinguished: according to law, namely that which confirms and interprets an already established law by long use, Cf. Can. De istis D. 4; L. Si de interpretatione de Leg. 27 Dig.; beyond law, which introduces a new right, commanding or prohibiting something concerning which no written law is had, Cf. Can. Consuetudo D. 1; L. De quibus de Leg. 32 Dig.; against law, namely by which either a law is not received, or, once received, is abrogated or derogated. L. 107. 108. "Custom both has the force of law, and abolishes law, and is the interpreter of laws." S. Th. 1. 2. q. 97. a. 3. - C. I. 580. 1654; C. G. 671.

Besides, one custom is universal, which obliges all in the universal Church, or in the whole territory of some temporal Prince; another particular, which obliges only in some place, in some diocese, etc. The style of the Curia is reduced to particular custom, which is taken for the customary observance in the Roman Curias, and for unwritten law, and is to be observed as law from the Constitution Cum gravissimae of Paul III. - But generally the customary observance in some place is called the local style, and outside the place it has no force, Riganti on Reg. 42. n. 225, on Reg. 45. § 1. n. 97 etc. From C. I. Comm. 89, C. I. Civ. 1513, in the matter of commerce style and custom prevail over common Law. - Suarez l. 7. c. 5. n. 5.

What things are required for having custom? - In order that custom be legitimate several conditions are required:

1. That it be rational, that is, that it not be an incentive of sin, nor pernicious to the common good. Otherwise it can never acquire the force of law, since law must be honorable, useful, just. Hence there can be no custom against natural and divine law, but only against human law; nor against this in those things which break the bond of ecclesiastical discipline, C. 5. 11 de Consuet., or which can be constituted only by privileges. For since custom is an unwritten law, it can be had only in those things which can be constituted by laws. L. 39 de Legib.; L. 107; S. Th. Quodl. 2. a. 8; Schmalz. l. c. n. 7.

2. It is required that it be introduced by the whole community, or at least by the greater part of it, capable of being governed by law, and capable of making law; and if it cannot of itself make law, it suffices that its manner of acting can obtain the force of law, the consent of the Prince acceding. For that is judged morally done by all which is done by the greater part. But custom must be introduced by those for whom laws or statutes can be constituted. Hence not only perfect societies can introduce custom, but also imperfect ones, a province, city, diocese, chapter of canons, religious order, monastery, etc. Women cannot introduce customs against the proper laws of men, nor conversely; as neither can ecclesiastics against the laws of laymen, or conversely, unless the matter is common. Therefore clerics as regards spiritual matters are not obligated by a custom made by laymen, since laymen are incapable as regards spiritual matters of introducing custom for clerics. Private persons cannot introduce custom. L. 32 de Legib.

3. But it must have been introduced through repeated acts, and not interrupted until the custom is completed, voluntary acts, that is, neither from ignorance nor from error, for example if the people thinks that a law exists which in reality does not, nor extorted by force and fear, but from an intention of introducing custom and of obliging themselves, or disobliging themselves, finally public acts. For only these acts, with these conditions posited, can be had as conducing to the common good, so that then the legislator can reasonably consent to such a manner of acting. Moreover custom, since it has the force of law, must be promulgated no less than law. - Not interrupted: they can be interrupted in two ways, in fact, if the community ceases to act; in right, if the superior urges the law. With the intention of introducing custom: this mind or intention is gathered from circumstances, namely if the custom is constantly observed, and with no light inconvenience, if transgressors are punished, if pious men commonly think so. - L. 39 de Legib.; S. Th. 1. 2. q. 95. a. 4, q. 97. a. 3.

4. It is by no means required that good faith always be present from the beginning, for even by sinning a custom can be made which afterward becomes honorable. For custom against law has a threefold state. In the beginning, all those introducing the custom against the law sin. In progress, those using a custom introduced by their elders no longer sin, but they can be punished. In the end, they neither sin nor can be punished when using the custom already prescribed. Therefore custom cannot altogether be equated with prescription. L. 107; Schmalz. l. c. n. 6.

5. It is required besides that it endure for a long time. But here one must distinguish: either custom is introduced by way of connivance, namely the legislator knowing and conniving, which happens when the legislator knows that the law is not received and dissembles, although he could easily urge observance; or it is introduced by the ordinary way of prescription, the legislator being ignorant. If the first, Benedict XIV teaches that "no space of time is necessary.... For then, after a few acts tolerated by the superior, it is presumed that he by this very connivance tacitly revokes his law, and does not wish to bind by it the community to which it is displeasing." De Syn. l. 13. c. 5. n. 3; Ithur. Cas. 53. n. 7. 8. If the second, there are several who require 10 years, both as regards Roman Civil Law and Ecclesiastical Law. But others require 40 years as regards each Law. For from this Law an inveterate, long-lasting, long, long-lived custom is required. L. 32. 33. 35 de Legib.; L. 1. 2 C. Quae sit longa. Consuet.; L. 107. 139, l. 3. n. 849. And here must be recalled centenary and immemorial custom, by which all those things can be acquired which can be acquired by privilege and indult of the Prince, C. 13 de Iudic. n. 5; and it is not revoked even by a clause revocatory of any custom whatsoever having been added, "unless it is expressed, because when the superior wishes also to revoke that custom, he expresses it." L. 109.

6. Now custom can obtain the force of law insofar as the consent of the Prince accedes to it, either express, or tacit, which is had when the Prince knows the custom and, although he could, does not contradict it, or at least legal consent, which is that which is had beforehand through laws universally approving legitimate customs. For legal consent of this kind it is not required that the Prince know the custom; nevertheless it is required that it not be established that he was unable to protest against the custom. For if the Prince constantly resists, then no custom is made. But if no law of this kind is present, such a general will is always supposed in the legislator. For the common good demands this. - C. Cum tanto fin. de Consuet.; L. De quibus de Legib.; L. 107, l. 3. n. 290. 1009; Suarez l. 7. c. 8. 15; Schmalz. l. 1. p. 1. t. 4; Gur. Cas. 132 seq.; S. Th. 1. 2. q. 97. a. 3; E. M.

What if contrary custom is prohibited by law? - "If the clause is added, notwithstanding any custom whatsoever, the opposed past custom is understood to be reproved, but not the future.... But if the clause reproves any future custom whatever, still they say that it is more probable that such a custom can abrogate the law. If it is reproved... as irrational... as contrary to natural or divine law, then no custom can have force. But if it is reproved as irrational for the time in which the law is made, then from a new cause it can be rendered rational." L. 108, l. 6. n. 325 toward the end; A. S. S. v. 4. p. 26. Since every law is rational, it cannot exclude rational contrary customs after they have already been formed. Therefore, if the clause is added, any contrary custom in the future being excluded, this clause renders more difficult an arising ordinary contrary custom, and excites the vigilance of the legislator to impede it as far as possible, but it will not exclude an extraordinary, centenary and immemorial custom already formed.