CHAPTER IV: ON UNWRITTEN LAW, OR ON CUSTOM

183. Definition. - Custom is of one kind in fact, and is defined: "The frequency of similar acts of some community." Another is of law, and can be defined: "Right acquired through the frequency of similar acts of some community."

It is said: 1° Frequency, because acts must have been repeated several times according to the judgment of prudent persons.¹

It is said: 2° Of some community; yet not of just any community, but one which is capable of legislative power for itself, or at least sufficient that a true law can be imposed upon it.

184. Division. - Custom 1° is one kind according to law, which either interprets a doubtful law, or confirms a certain law and helps by bringing it into execution. Another is beyond law, which establishes something where law is lacking. Another is against law, which abrogates a law, or does not allow it to oblige when it has not yet been accepted.

2° Into most general, which has force in the whole Christian world; general, which has force in an entire province; and special, which has force only in some city, district, etc.

3° Not indeed a custom of law (since an evil custom cannot make law), - but a custom of fact is divided into good and evil, or rational and irrational. It can happen in two ways that a custom is evil: intrinsically, indeed, when it is against natural or divine law; but extrinsically, when its acts are prohibited by law, or are evil because of an adjoined depraved circumstance which can cease.

A custom evil intrinsically is called an abuse or corruption, and can never pass into law; one evil extrinsically can become good by the removal either of the prohibition, or of the adjoined depraved circumstance.

4° Into a custom not repudiated by law, and a custom abrogated, prohibited, and reprobated by law; which three things are not to be confused. For when a law abrogates a custom, the custom existing before the law is abrogated, but it is not for that reason declared evil or irrational. But when it prohibits, it prohibits also a custom to be introduced in the future, which nevertheless is not for that reason declared evil or irrational. Finally, when the law reprobates, by that very fact the custom is declared evil and irrational.

The clause non obstante quacumque consuetudine is judged abrogating. But the following is prohibiting: We do not will that any custom against this law have force. Finally, the following clauses must be held as reprobating: utterly disapproving that custom; since it must deservedly be judged not so much a custom as a corruption.

185. • Conditions, so that custom may have the force of law, are required, some on the part of the Community, some on the part of the Custom itself, some on the part of the Prince.

I. On the part of the community. - Custom must be introduced by a community upon which at least true law can be imposed, - by the greater part of it, - from certain knowledge, - through public and free acts, not elicited from force or fear, - with the intention of binding itself, if there is question of a custom beyond law, - and with acts not interrupted before the constitution of the custom.

It is said: 1° By a community upon which at least, etc., as we have already said above at n. 183. 2°.

It is said: 2° By the greater part of it; because obligation is introduced by the community, with the prince consenting; but it would not truly be introduced by the community if only the lesser part observed the custom.

It is said: 3° From certain knowledge. Authors commonly require that condition, because the prince does not intend to acquiesce in a custom unless the community wills either to exempt itself from a law, or to impose a law upon itself; but neither can happen where there is error on the part of the community, falsely thinking either that the law against which it acts is not present, or that it is held to a law which it imposes upon itself through custom.

It is said: 4° Through public acts: so that all of the people, or the greater part, can agree in giving consent, and such a custom can be known to the Prince; and therefore the acts ought to be public, at least by notoriety of fact.¹

It is said: 5° Through free acts, etc. Because otherwise the superior is not judged to consent; for he cannot be presumed to will subjects to be compelled by unjust fear to impose upon themselves obligations to which they are not held, or to exempt themselves from obligations by which they are justly bound.

It is said: 6° With the intention of binding itself, etc. For if the people act from mere devotion, the custom will not have the force of law: as, for example, the custom of receiving ashes at the beginning of Lent, etc. - In doubt whether the custom was introduced from mere devotion, or also from the will of binding itself, it must be presumed that it was rather from devotion; likewise in doubt whether under grave or light obligation, whether unto fault or unto penalty, the more benign part is to be held. The mind of binding itself is known from circumstances, namely if the custom is constantly observed and with no slight inconvenience, for example, the custom of fasting on the vigil of Pentecost; if transgressors are punished, etc.²

It is said: 7° And . . . not interrupted. The opinion is common: because otherwise the custom would not have been legitimately prescribed.

But a custom that has been interrupted, even by one contrary act, posited by the people from certain knowledge, - or by punishment inflicted by the superior, - must be begun anew.

But if it has already been completed and confirmed, it is not revoked by one act of the people acting against it, at least if the custom was beyond law. But if it was against law, see below what is to be said concerning the abrogation of custom by a contrary custom.

II. On the part of the custom itself. - Custom ought to be good and rational.³ - The reason is that the object of law ought to be good and useful to the community, which it would not be if the custom were not rational or good.

Moreover a custom must be held good and rational when its object is such that it could have been the object of a just law. Hence it ought not to be opposed to natural or divine right, nor to be reprobated by canon law, nor to furnish license or occasion of sinning, nor to be harmful to the common utility, nor to break the nerve of ecclesiastical discipline.

Hence a custom would not have force, 1° of observing no interdicts or excommunications, or of not subjecting oneself to the visitation of the Bishop; because in this way the nerve of ecclesiastical discipline would be broken.¹

2° Of not accepting decrees of the Supreme Pontiff unless they have first been approved by the Bishops, even in a case in which the Supreme Pontiff prescribes otherwise; because such a custom breaks the nerve of ecclesiastical discipline, and is opposed to the ordinance established by Christ.

3° That Legates of the Holy See not be received, because it is against ecclesiastical liberty.²

III. On the part of the prince. - On this part it is required that the Supreme Pontiff consent, if there is question of the common laws of the Church: for custom is law; therefore it ought to flow from the same source as laws; and therefore from the Supreme Pontiff, when there is question of the common laws of the Church.

The Supreme Pontiff can consent in a threefold way: expressly, tacitly, and legally.

1° Express consent is sufficiently understood, and concerning it no difficulty can be raised.

2° Tacit consent has place when the Pontiff, seeing the custom, does not contradict it, although he could conveniently do so. For then he is deservedly presumed to consent, if the custom is rational. In the same hypothesis, if it is doubted whether the custom is rational, it can legitimately be concluded that it is rational from the fact that the Pontiff is silent. For if he judged it irrational, he would certainly contradict it, since from the hypothesis he can easily contradict it. But if the Pontiff lacks the convenience of protesting, then it cannot be concluded that he is therefore silent because he acquiesces in the custom against the law: since the reason for his silence is perhaps fear of a greater detriment arising from his protest, as, for example, of schism on the part of the people, or of persecution on the part of the civil power. In this case, therefore, custom does not prescribe against the law, since the legislator must be judged to will that his law be observed when it cannot legitimately be presumed that he consents to its abrogation. Yet then it can deservedly be presumed that the Pontiff consents that the obligation of the law be suspended until he can freely manifest his mind.

3° Legal or general consent is so called because it is furnished through that general law by which all rational and legitimately prescribed customs are approved: hence for such consent it is not required that the Pontiff know the custom.¹ - But to St. Alphonsus² the opinion is probable which teaches that even a custom which is against law is legitimately prescribed in ten years, and that good faith is not required for this.

186. Force of custom. - 1° It interprets law, and indeed authentically, if it has been legitimately prescribed; otherwise only conjecturally.

2° It introduces law.

3° It abrogates law. But it can abrogate it either totally, or only as to the penalty; indeed only as to the obligation, while the penalty remains, provided the penalty does not necessarily suppose fault, such as, for example, a censure would be.

4° It irritates acts done to the contrary.³

But whether custom can abrogate a law which prohibits a custom to be introduced in the future? The question is controverted, as will soon be seen.

187. Abrogation of custom. - It can happen either by a supervening law; or by an earlier law by which a custom is prohibited before it has arisen; or by a contrary custom.

1° By a supervening law. A later universal law necessarily abrogates the universal custom of the Church contrary to itself, even if it is immemorial and although it makes no mention of it: otherwise, as is plain, the law would be rendered useless.⁴

For particular customs which are not immemorial, or centenary, derogation is sufficiently made by the general clause: no custom standing in the way; for that clause is not required in order that the general customs of the Church be abolished; therefore it would be useless if it did not derogate local customs. This is the common opinion.

Yet Bishops, says St. Alphonsus,¹ through their laws "abrogate any particular custom whatsoever; because they are presumed to have full knowledge of the customs of their dioceses."

For the abrogation of particular immemorial customs, special mention is required, for example, by the clause: even immemorial. The reason is that a custom of this kind is in the manner of a title, indeed, as Fagnanus says, than which no better title can be alleged in the whole world; and it always has the force of a privilege conceded by the prince. Thus commonly against some. Make exception 1° if the law declared contrary customs irrational; 2° if the reason of the law militates equally against immemorial customs and against others; 3° if the legislator abrogates all contrary things, excepting one case.

2° By an earlier law, by which a custom is prohibited before it has arisen. It is disputed whether a custom can prevail against such a prohibiting law. The 1st opinion denies it, because otherwise a prohibiting clause of this kind would have been added uselessly; the 2nd opinion affirms it, because from cap. Cum tanto,² for a legitimate custom it is required only that it be rational and legitimately prescribed; but from the fact that the custom has been prohibited, it is not therefore always to be reputed irrational, as we have already said above at n. 184. 4°. - To the opposite reason it is answered that the said clause is not added uselessly: both because from it in doubt it can be concluded that the custom is irrational; and because through it the prince signifies that he does not tacitly consent to a custom of this kind, although it is known by him; and therefore in this case long prescription is required, etc. - Suarez³ and St. Alphonsus⁴ embrace this latter opinion as more probable.

3° As to the abrogation of custom by another contrary custom, it is certain that it can happen, and in this case, if there is question of a custom beyond law, ten years suffice; but if there is question of a custom against law, many Doctors again require ten years, and say that that time suffices, because in this case there is a return to law, and therefore there is no acting against law.

But it seems to suffice that the greater part of the community no longer observe the custom against law, because the Pontiff must deservedly be presumed not to have consented to such a custom except with this restriction: until the people, whom I do not wish to displease, shall so desire.

188. Questions. - Quaer. 1° What concerning a custom contrary to the Tridentine decrees on Reformation?

Resp. It is disputed whether sometimes it is legitimate.¹ The following observation of the periodical pleases us: "Acta ex iis, quae apud S. Sedem," etc.² Not long after Trent, among Canonists the saying began to gain force: against Trent no custom is admitted. This saying, which did not have a grave foundation from the beginning, was deservedly dismissed by the Sacred Congregation of the Council. I said: it did not have a grave foundation; for that general clause was neither added to the decrees by the Tridentine Fathers, nor explicitly by some Constitution of the Roman Pontiff. Yet it was very often repeated by various authors up to our times; nevertheless this saying in the course of centuries little by little lost its truth; and in fact we now see that many customs have prevailed against Trent which are not reputed irrational, especially on account of the circumstances of places. But no one will wonder, since there is question of disciplinary laws, which of their nature admit rational customs; for they are liable to change. Nor does it matter if perhaps they carry before themselves the clause: any contrary custom in the future excluded; the force of this clause can be no other than to render the custom contrary to the new law more difficult, and to stir up the particular vigilance of authority, lest an adverse custom prevail. But we have solemn examples in the Decretals themselves concerning this change introduced through customs. Cf. L. V, 15, § Ita respectu.

189. • Quaer. 2° What concerning the customs of this region?

Resp. "To ecclesiastical laws," says Kenrick,⁴ "in this region many things are accustomed to be done by no means consonant, and we scarcely dare to say whether they have attained the force of custom. But it is probable that many things have arisen from Pontifical indult, or from faculties conceded to Bishops, necessity also compelling; and therefore they seem able to be retained until it shall seem otherwise to Prelates or to the Apostolic See. . . . But in very many other things there is that discrepancy of morals which removes, or weakens, custom: and therefore, although we do not condemn those who follow received usages, until the authority of Prelates shall have abolished them, nevertheless we judge that they are strongly to be commended who, setting aside the contrary usages of certain provinces, insofar as the circumstances of things allow, imitate in all things the discipline of the universal Church, and especially of the Roman Church."

On custom against the Rubrics see n. 1336.