When a custom has the force of law

204. Its force of obliging. 1. That custom has the force of introducing law is established by the fact that from the law cited above, reasonable and legitimately prescribed custom has the force of law.

A law introduced through custom is called unwritten law, so that it may be distinguished from written law, which is constituted and promulgated by the express ordinance of the legislator.

2. Custom can impose any law whatever: preceptive, invalidating, indeed even merely penal; for custom can effect what law itself effects; but law can impose any obligation whatever.

It is established that the law obliging all clerics constituted in sacred orders to the recitation of the office, and some diriment impediments of marriage, as the impediment of disparity of cult, were introduced by custom.

205. Required conditions. In order that obligatory custom receive the force of law, the same conditions are required which are required for abrogating law through custom:

a. the consent of the legislator, at least legal consent, without which obligation cannot be imposed;

b. reasonable matter, namely matter which contributes to the common good and therefore can be prescribed by the legislator in an enacted law;

c. a community capable of having a law imposed upon it;

d. acts freely exercised by the community, i.e. neither from fear nor from error or ignorance, but with knowledge that no law exists concerning this matter;

e. acts exercised with the intention of obliging oneself; wherefore those things which are exercised by the faithful from mere devotion, as the triple Angelic Salutation, cannot obtain the force of obligatory custom.

Nevertheless even acts of mere devotion can acquire the force of law through custom, provided the faithful, knowing that there is no obligation of it, have the intention of obliging themselves to that act. This intention must be gathered from the circumstances, e.g. if it is constantly observed even with some inconvenience, if transgressors are punished, if pious men commonly judge so.¹

f. acts legitimately prescribed.

Whether a new law removes contrary customs in force.

Clauses by which contrary customs are reprobated are customarily added to pontifical constitutions; but concerning these clauses it must be noted: a. A universal law removes a contrary universal custom, but it does not remove particular customs unless a clause is added which reprobates a contrary custom in force. b. This clause: notwithstanding any custom whatever removes all customs except immemorial customs,² but it does not impede the origin of a new contrary custom. c. The clause: notwithstanding any custom whatever, even immemorial, removes altogether all contrary customs, but neither does it impede the origin of a new contrary custom. d. The clause added to a law: with any contrary custom whatsoever excluded for the future indeed renders more difficult a custom contrary to the new law, but it does not altogether impede its origin: for this clause itself is a disciplinary law; but it belongs to the nature of a disciplinary law that it admit contrary custom.³

¹ St. Alphonsus l. 1. n. 107. IV.

² An immemorial custom is one of whose beginning there exists no memory. It is not said: one of whose beginning there exists no knowledge; therefore a custom can be immemorial even if its beginnings are quite well known from history, provided its existence transcends the memory of men now living (about one hundred years).

³ Cf. Aichner, Compendium iuris eccles. (Brixinae. Weger. 1900) p. 81 ss.

In order that a custom may have the force of law it must be reasonable and it must fulfil certain other conditions.

A custom will be reasonable if it is not against the natural or divine law, against which no custom can prevail, nor furnishes the occasion nor is an incentive to sin, nor is pernicious and hurtful to the common good. Inasmuch as custom has the force of law, it cannot be introduced by individuals or by private families, for whom precepts may be given but laws cannot be made.

It must be introduced by the repeated acts of the greater portion of a community or corporate body which is capable of being the subject of law. How many acts are required to form a custom depends much on the matter, and must be left to the prudent judgement of experts.

The acts by which the custom is introduced must be voluntary, not the product of ignorance or mistake, and unless the tacit consent of the legislator is given before, they must continue for a long time—that is, forty years (Can. 27).

As custom depends on the will of the ecclesiastical superior, he may refuse to admit or he may abrogate a custom.

The clause ‘“ Notwithstanding any custom to the contrary,” which frequently occurs in pontifical legislation, merely annuls general customs to the contrary, not special ones nor immemorial customs, nor those of a hundred years’ duration. These require special mention in papal but not in episcopal legislation. The reason of the difference lies in the fact that the Pope may easily be unaware of local customs, and he does not annul what he does not know. But a Bishop is presumed to know the customs of his diocese, and if he makes a law which is against a custom he thereby abrogates the latter, Only a reasonable custom which is immemorial or of a hundred years’ duration can prevail against a law which contains a clause forbidding future customs to the contrary (Can. 27). If, however, a law reprobate contrary customs as abuses, they cannot be introduced as long as the circumstances remain the same. Such customs would be unreasonable, and could not have the consent of the legislator.

Custom has not the power to establish or repeal a law, unless it possesses the requisites of law itself (see 285). Hence arise the following conditions:

(a) Since the exercise of the legislative power requires freedom, customs do not possess legal force unless they have been practised freely. Hence, a custom that has been established by force does not suffice;

(b) Since laws can be made only for perfect societies, customs have not the force of law, unless they are practised by a perfect society, or by a majority of its members who are representative. Hence, a custom observed by a family or by a minority of the voters in a body that has its own jurisprudence has not the status of law;

(c) Since laws must proceed from competent authority, customs do not make or unmake law, unless they have the approval of the ruling power. In a society where the legislative function rests with the people (e.g., in the ancient democracy of Athens), the fact that they follow a custom with the purpose of enacting it into law or of using it against an existing law is sufficient approval. But if the supreme power is not with the multitude, their customs do not obtain the force of legislative acts, unless approved by the constituted authority;

(d) Since law needs to be promulgated, a custom, to have the effect of law, must be practised by public acts through which it becomes known to the people as a whole.

Customs that have the other requisite conditions begin to be obligatory or derogatory as soon as the approval of competent authority is had. (a) If the approval is given expressly, the custom has the force of law at once; (b) if it is given tacitly, inasmuch as the lawgiver, knowing the custom and being under no restraint, does not disapprove, the custom has the force of law as soon as tacit consent is recognized by the learned and prudent; (c) if it is given by the law itself, which explicitly accepts reasonable customs, the custom has the force of law when it has lasted for ten years, or other length of time prescribed.

If the superior disapproves of a custom or maintains diplomatic silence for fear of greater evils, his consent is withheld, and the custom cannot be deemed as of legal force.

There are other conditions necessary that a custom may acquire the force of law. (a) Since a law is an ordinance knowingly imposed by the will of the legislator, a custom does not constitute a law if it is followed through the erroneous conviction that it is already a law, or if there is nothing to indicate a will to make it obligatory. Signs of the intention to raise a custom to the dignity of a law are the punishment of transgressors of the custom, the observance of the custom even at the cost of great inconvenience, the opinion of the good that it should be followed, etc. (b) Since a law cannot prescribe except what is reasonable and for the common good, a practice opposed to the Natural or Divine Law, or expressly reprobated by written law as an abuse, or one that is injurious to the welfare of the community, cannot become unwritten law through custom.

There are special conditions in order that a custom may do away with an existing law. (a) A written law is not repealed unless the legislator wills to take away its obligation, and hence desuetude or a custom contrary to law does not abrogate a law unless it manifests a purpose not to be obligated by what the law prescribes. This it does if the whole people regard a certain law as a dead letter, or feel that circumstances or the common welfare require the opposite of what the law requires, and have no scruple in acting uniformly according to this conviction.

(b) A written law is not repealed, if it is immutable, or if a change would be prejudicial to the common interest; similarly, therefore, a custom cannot abolish a law, unless this law is one that can be abrogated by human acts, and that is not essential to the public good. Hence, customs contrary to the Commandments or to the Law of Christ, customs that are expressly condemned in Canon Law as corruptions, customs that encourage lawlessness or afford occasions of sin, can never do away with a law, no matter how long or by how many they are practised.

Those who start a custom contrary to law are sometimes in good faith, and hence are not guilty of disobedience. (a) It may be that they are in ignorance of the law, but have the interpretative will not to be bound by it; (b) it may be that they know the law, but sincerely think that, on account of conditions, it has ceased of itself.

Custom is formed as follows. (a) As to origin, it arises from the practice of the people, when this practice is followed with the purpose of making or unmaking a law. Hence, the habitual way of acting of an individual, even if he be the superior, does not give rise to a custom. By “people” here is meant a community capable of having its own law (Canon 26). (b) As to legal force, custom arises solely from the consent of the Pope or other prelate, when this consent is expressed by the law or lawgiver, or tacitly admitted by him. Hence, a custom not approved by the superior has no legal force (Canon 25).

A custom can introduce or abrogate any kind of ecclesiastical law or other custom—penal, prohibitive, irritant—if it is reasonable and has lasted the prescribed time (Canons 27, 28). Examples: A law that forbids contrary customs can be abrogated, according to the Code, by such customs when they are immemorial, or a century old (Canon 27, Sec. 1). The impediment of disparity of worship became diriment through custom; it was custom that introduced the obligation of the Divine Office, and that mitigated the early law of fast.

A custom expressly disapproved of in law is not reasonable or legitimate, and cannot derogate from an existing law, nor establish a new law (Canons 27, 28).

The time prescribed by the Code of Canon Law for the acquisition of legal force by customs that have not the personal consent of the lawgiver is as follows: (a) forty continuous and complete years are required to unmake an ordinary law; one hundred years to unmake a law that forbids future contrary custom (Canon 27, Sec. 1); (b) forty continuous and complete years are likewise required to make a new law (Canon 28).

"... Therefore we have judged it good by the present Constitution, in order that abuses may be met, to declare what and of what sort a legitimate custom according to the canons ought to be, by which episcopal and ecclesiastical courts can have the right of taking cognizance of and judging the criminal causes of lay defendants. Therefore we order that not every custom for this purpose, but only that custom, have force which is both forty years old and perpetually constant, not indeed contradicted or interrupted. Moreover, we will that it be constituted by a multiplicity and frequency of acts, not slight but grave, which are known to have been performed with the intention of prescribing secular jurisdiction, not tolerated from favor or connivance; nor such acts as perhaps could have taken place apart from the certain and precise knowledge either of Us and of Our Successors for the time being, or at least of the supreme magistrates of this Our City, whom we are accustomed especially to set over the prosecution of the public vindication of crimes. We command that absolutely no account be taken, in a matter so grave, of the knowledge and patience of local rectors and of other inferior secular magistrates, to whom, when they are sometimes either negligent, or conniving and tolerating out of a certain reverential fear, we establish that it is not lawful, and has not been lawful, by their favor, acquiescence, and patience, to make legitimate a custom by which the jurisdiction entrusted to them is diminished, with the order of both powers disturbed. If, therefore, a custom such as we have now established is brought forward, we will that it be kept and observed; but a custom introduced otherwise we reprove, and by this Our Constitution we decree it to be of no force..." Clement XIII, Const. Praestat Romanum.

"... Therefore we have judged it good by the present Constitution, in order that abuses may be met, to declare what and of what sort a legitimate custom according to the canons ought to be, by which episcopal and ecclesiastical courts can have the right of taking cognizance of and judging the criminal causes of lay defendants. Therefore we order that not every custom for this purpose, but only that custom, have force which is both forty years old and perpetually constant, not indeed contradicted or interrupted. Moreover, we will that it be constituted by a multiplicity and frequency of acts, not slight but grave, which are known to have been performed with the intention of acquiring a prescriptive right against secular jurisdiction, not tolerated from favor or connivance; nor such acts as perhaps could have taken place apart from the certain and precise knowledge either of Us and of Our Successors for the time being, or at least of the supreme magistrates of this Our City, whom we are accustomed especially to set over the prosecution of the public vindication of crimes. We command that absolutely no account be taken, in a matter so grave, of the knowledge and patience of local rectors and of other inferior secular magistrates, to whom, when they are sometimes either negligent, or conniving and tolerating out of a certain reverential fear, we establish that it is not lawful, and has not been lawful, by their favor, acquiescence, and patience, to make legitimate a custom by which the jurisdiction entrusted to them is diminished, with the order of both powers disturbed. If, therefore, a custom such as we have now established is brought forward, we will that it be kept and observed; but a custom introduced otherwise we reprove, and by this Our Constitution we decree it to be of no force...." Clement XIII, Constitution Praestat Romanum.

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.

137. • Custom, insofar as it is considered causally, is a mode of acting induced 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 accepted as law, even if law is lacking.

Principles. - I. Custom, clothed with due conditions, can introduce a new law, abrogate an old one either wholly or in part, for example as to the penalty while the obligation remains, or conversely, and likewise modify or interpret a law. This is established from various places of both Canon and Roman Law, from which it is indubitably drawn that custom is to be held as law. It is likewise established from the common opinion of theologians and legal experts. Hence the axiom: Custom is the best interpreter of laws.

II. The conditions for introducing or abrogating a law are 1. That the custom be reasonable. For this it is required that it not break the nerve of ecclesiastical discipline; furthermore, that it not be a tinder and occasion of sins, nor pernicious to the common good. Bouix. - 2. That it be introduced by a community (and indeed by the greater part of the same, capable of establishing a law, Bouix), through repeated acts (and not interrupted up to the completed custom, Reiffenstuel), voluntary acts (that is, not introduced by force or fear ¹, Bouix), public acts, with at least an implicit intention of obliging themselves (if it is a matter of custom beyond the law). - 3. That it endure for the required time.

¹ Add that the acts ought not proceed from error or ignorance. For otherwise, since nothing is more contrary to consent than error, the acts would be judged involuntary.

For attributing the force of law to custom, the express consent of the Prince is not required, but legal or juridical consent suffices, which is had through the laws and canons approving custom introduced by the morals of the people, and attributing to it the force of unwritten right.

139. • QUESTION 2. When is custom judged to have been introduced with the intention of obliging oneself?

I answer: 1. If the Doctors agree in this; 2. if the custom is about a grave and difficult matter, and nevertheless can be said to have been observed constantly and commonly; 3. if Superiors gravely rebuke violators of customs. - St. Lig., no. 107.

QUESTION 3. What is to be held in doubt whether a custom has the force of law?

I answer: In doubt, after inquiry has been made, the principle holds: A doubtful law does not oblige. But this inquiry consists in investigating the sense of upright men.

320. 1. Notion. Custom, or rather customary right, is right induced by the customs of the community, with some consent of the superior.

It is explained: (a) In democratic government, where the people enjoy lawmaking power, the consent of a superior is not required for custom, or rather, since the people itself is the superior, its consent is contained implicitly in the customs themselves. But, in the Church of Christ, in which the people does not enjoy legislative power, custom has the force of law uniquely from the consent of the competent Superior (Code, c. 25). - (b) Yet customary right, although ultimately it obtains its force from the will of the superior, is not originally induced by him, but by the community itself, which frequently and universally manifests its mind by such or such a mode of acting.

Custom is distinguished from prescription: for this is the mode by which private citizens or private communities acquire some right, or free themselves from some obligation; while custom is law induced for the whole society.³

³ We treat of prescription in the Treatise on the Virtue of Justice, n. 243-263.

321. 2. Division. (a) By reason of extension, custom is general or particular, according as it has been received in the whole Church or in some part of the Church.

(b) By reason of relation to law, one is according to law, when by use it confirms or interprets an existing law; another is beside law, which induces a new obligation; another is against law, which derogates from written law in whole or in part.

322. 3. Reason of customary right. (a) That a new law can be induced by custom is easily understood. For laws attain their end, namely the public good, more efficaciously the more they are accommodated to the customs of the community: for then they are observed more easily and sweetly; but nothing is certainly more accommodated to these customs than a custom induced by the community itself and strengthened through a long time; therefore it was altogether fitting that the legislator should confirm by his authority customs apt for promoting the good of society. Thus certain impediments were introduced, such as disparity of cult, and also certain fasts. - The same can be said concerning a custom which interprets law.

(b) A custom which abrogates an existing law must likewise be said to be consonant with reason. For, that a law may promote the good of society, it ought not to be too arduous nor inaccessible to human infirmity; now if a law is opposed to a long-standing custom, which moreover we suppose to be reasonable, from this it is deservedly inferred that that law is too arduous and therefore to be abolished. - And this indeed appears more evident for the Church than for any other society: for the Church is perpetual and universal; but a law which is accommodated to one age, or to some region, often, with the passing of ages or with changed adjuncts, loses its usefulness, indeed sometimes has several inconveniences, especially in such or such a region. Therefore it was altogether fitting that antiquated laws could be abolished by contrary custom.

323. 1. On the part of the legislator consent is required, as is clear from what has already been said, n. 320. - (a) Yet consent which is called personal, by which namely the legislator, knowing some individual custom existing somewhere, assents to it either expressly or tacitly, namely when he does not protest though he easily can, is not strictly required, but plainly suffices. (b) Consequently legal consent suffices, which is given by way of general law, namely when the legislator, in the law itself, declares that any customs whatever will be valid, provided that they are clothed with the designated conditions; for thus he clearly expresses his consent, although in a general mode. Now that the matter is thus in canon law is clear from the celebrated declaration of Gregory IX: "For although the authority of long-standing custom is not worthless, nevertheless it is not going to prevail to such a degree that it ought to generate prejudice even to positive right, unless it has been reasonable and legitimately prescribed."¹

¹ Decretal., c. Cum tanto, 11, De consuetud., lib. I, tit. 4.

324. 2. On the part of the community, two things are necessary: (a) that custom be induced by a community upon which law can be imposed; for if it is not capable of receiving law, neither is it capable of inducing law. Now the communities which, from canon law, enjoy that capacity are: the universal Church, a province, diocese, city, town, and more probably a parish, - and also a religious order, a religious community, a chapter, seminary, and confraternity: for upon all these a law can be imposed by the Pontiff or bishop; - but a family or a private man cannot induce a custom.

(b) That the greater part of the community elicit acts inductive of custom; indeed the lesser part does not suffice, since this cannot command the greater; nor is universality required, since even in a legislative assembly universality of votes is not necessary; therefore the greater part suffices, which morally represents the community.

325. 3. On the part of the matter, or object, it is required that it be reasonable, at least negatively; and therefore that it not be contrary to natural or divine right of the new law, since, from what was said above, n. 227 and 256, each is immutable; nor expressly or equivalently reprobated by canon law itself; nor furnish an occasion of sin or be pernicious to society. But the judgment concerning the reasonableness of custom pertains to prudent men, doctors, confessors, honorable men, - or to a judge, if the matter is brought to the external forum. - But it is not required that it begin without sin; not rarely the first who prescribe against the law sin; but custom, even begun in bad faith, is valid, provided that it is negatively reasonable in the sense explained.

326. 4. On the part of the acts by which custom is induced. These ought to be: (a) free, that is, proceeding neither from ignorance or error, nor from force or fear, but from free will with previous knowledge; otherwise, they are not truly human acts, and therefore cannot induce or take away an obligation; (b) frequent and continuous, or uninterrupted: for if they occur very rarely, or are interrupted either on the part of the people, or on the part of the Prince punishing transgressors, they can no longer be said to constitute the customs of the community, which suppose a certain frequency and continuity; (c) with at least interpretative intention of inducing right or derogating from right: for acts morally do not operate beyond the intention of the agent; and therefore those who act from mere devotion (for example, in daily hearing of Mass) do not impose a new obligation on themselves, nor do they prescribe against the law, if from want of consideration they do not observe its prescriptions. - A custom prevails prescriptively, even if the law against which prescription is made is not explicitly known, provided that there is had an interpretative intention of abolishing the law; thus a diocese which prescribes against the law of fasting in general, and does not observe a new fast unknown to it, has sufficiently the intention of abolishing that fast.

327. 5. On the part of time. According to the Code, can. 27, 28, custom against the law is not valid unless it has been "legitimately prescribed through forty continuous and complete years; but against an ecclesiastical law which contains a clause prohibiting future customs, only reasonable centenary or immemorial custom can prescribe. A custom which is expressly reprobated in law is not reasonable. A custom beside the law, which has knowingly been observed by the community with the mind of obliging itself, induces law, if likewise it has been reasonable and legitimately prescribed through forty continuous and complete years."

328. Corollary. From this it can be inferred how certain clauses, added to pontifical laws for reprobating customs, can be understood.

(a) A universal law indeed takes away a universal custom contrary to itself, but per se does not take away particular customs which the legislator can be ignorant of.

(b) The clause "notwithstanding any custom whatever" indeed takes away every ordinary custom, but not an immemorial one, namely that of whose beginning no memory exists.

(c) The clause "notwithstanding any custom whatever, even immemorial" indeed takes away all previous universal customs, but does not prevent a new custom contrary to the law from being formed.

(d) The clause "any custom in the future being excluded" renders impossible an ordinary custom contrary to the new law, but in no way renders impossible a contrary centenary or immemorial custom, as is clear from the Code, c. 27, § 1. Hence against disciplinary Tridentine laws, centenary or immemorial custom is admitted.

See the rest concerning custom and ecclesiastical law apud the Canonists.

275. Requirements for legitimate custom. In order that custom produce a full legal effect, three things are required: 1. suitable matter; 2. a capable subject; 3. the consent of the competent superior.

276. 1. The suitable matter of custom is a reasonable practice established by legitimate prescription. Hence it is customarily said briefly: Custom has the force of law if it is a) reasonable and b) legitimately prescribed.¹³³

A custom is reasonable which truly promotes the common good. But a custom is judged unreasonable if it concerns something which cannot be introduced by written human law, namely: a) if it is contrary to natural or positive divine right.¹³⁴ Hence Gregory IX¹³⁵ said: "No one of sound mind understands that natural right ... by any custom whatsoever (which in this part is more truly to be called a corruption) can in any way be derogated from." b) If it breaks the sinew of discipline.¹³⁶ Hence, for example, all customs which weaken monastic discipline are invalid. c) If it provides license or occasion of sinning.¹³⁷ Reiffenstuel¹³⁸ deservedly observes: "Speaking in particular or in particular cases, whether this or that custom is reasonable or not, this is to be left to the judgment of a prudent judge.... But if, after all things have been weighed, doubt remains concerning the reasonableness of a custom, it will be presumed reasonable and expedient for the common good." It is self-evident that an already existing custom, which afterwards is expressly reprobated in law, is no longer reasonable and therefore loses every force.¹³⁹ The Code of Canon Law has reprobated several customs of this kind (namely 21). But whether those customs now reprobated can afterwards (with circumstances changed) again become legitimate does not seem to be denied.

Custom ought to be legitimately prescribed. For this legitimate prescription no determinate time is required if the tacit or express consent of the legislator ratifies it; otherwise, for legitimating a custom both against and beyond law, prescription through 40 continuous and complete years is required; indeed, if the law contains a clause prohibiting future customs, only a reasonable centenary or immemorial custom can prescribe.¹⁴⁰

¹³³ c. 11, X, 1, 4. Under the name of prescription required for legitimate custom nothing else is understood except sufficient duration and due consent of the legislator. Therefore this prescription is to be distinguished from that concerning which there will be discussion in the treatise on justice.

¹³⁴ Cod. iur. can. c. 27.

¹³⁵ c. 11, X, 1, 4; cf. also S. theol. I, 2, q. 97, a. 3 ad 1.

¹³⁶ c. 3 and 5, X, 1, 4.

¹³⁷ c. 9 and 10, ibid.

¹³⁸ L. c. n. 41 sqq.

¹³⁹ Cod. iur. can. c. 27, § 2.

¹⁴⁰ Ibid. c. 27, § 1 and c. 28.

277. 2. The capable subject of introducing custom is only a community upon which law properly so called can be imposed.¹⁴¹ Wherefore a diocese, a religious Order, etc., can introduce custom, but not private persons or families, since these are not capable of law properly so called, but of a simple precept. Moreover it is required that custom be introduced a) by the greater part of the community; b) by repeated and spontaneous acts; c) with the intention of obligating itself or of rejecting some obligation. - Authors dispute whether, for introducing custom against law, good faith is required in those acting against a clear written law. The truer opinion seems to be this: If the prince knows and tolerates such a custom, although he could easily oppose it, then he is judged to consent to the abrogation of the written law, and the custom becomes legitimate with the passage of time. But if the prince is ignorant of this custom, or if he cannot contradict it without notable inconvenience, then the first transgressors of the law sin more or less according to their bad faith. But it cannot happen that gradually a great part of the people, by acting against the law, does not become of good faith. For if some positive law is neglected with impunity by a great part of the people, soon a common opinion will arise that such a law no longer obliges in conscience.¹⁴²

¹⁴¹ Ibid. c. 26.

¹⁴² Cf. Schmalzgrueber, Ius can. l. 2, tit. 26, n. 56 sqq. St. Alphonsus teaches absolutely that good faith is not required for custom, since custom can be made even by sinning (Theol. mor. l. 1, n. 107).

278. 3. Consent of the competent ecclesiastical superior is required in order that the morals of the community obtain the force of law. Thus all Catholics teach against the so-called "historical" school (Schulte, Sohm, Windscheid, etc.), which teaches that the efficient cause of customary law is the community alone, without any consent of the prince being required. Concerning the necessary consent of the prince, the Angelic Doctor teaches:¹⁴³

"The multitude in which custom is introduced can be of a twofold condition. For if it is a free multitude which can make a law for itself, the consent of the whole multitude for observing something, which custom manifests, is more than the authority of the prince, who does not have the power of establishing law except insofar as he bears the person of the multitude; hence, although individual persons cannot establish law, nevertheless the whole people can establish law. - But if the multitude does not have the free power of establishing law for itself, or of removing a law placed by a higher power, nevertheless the custom itself prevailing in such a multitude obtains the force of law insofar as it is tolerated by those to whom it pertains to impose law upon the multitude: for by this very fact they seem to approve what custom has introduced."

From these words of St. Thomas it follows that in those kingdoms in which legislative power resides in assemblies elected by the people, custom (provided that it is reasonable) can arise without any consent of the prince. But since the Church is not such a kingdom, and ecclesiastical laws are established without the previous election or consent of the people, for every legitimate ecclesiastical custom the consent of the legislator or competent superior is required. Wherefore the Code of Canon Law c. 25 establishes: "Custom in the Church obtains the force of law uniquely from the consent of the competent ecclesiastical superior." This consent indeed is either express, namely if the competent superior approves the custom in explicit words; or legal or juridical, namely if it is given through the law itself permitting the rise of reasonable customs; or tacit, namely if the superior is silent, although he can easily protest against the arising custom. - Present-day authors very commonly teach that any one of these three consents, really existing, suffices for establishing a legitimate custom.

¹⁴³ S. theol. I, 2, q. 97, a. 3 ad 3.

280. 1. Obligatory custom, or custom establishing a new law, today is rare. But in former times such customs produced new obligatory laws. Thus, for example, the law concerning the private recitation of the Divine Office and the matrimonial impediment of disparity of cult were introduced by customary law. - Custom, adorned with due qualities, can introduce any just law whatsoever, whether preceptive, penal, or invalidating. But the qualities required are: a) that the consent of the legislator be present; b) that the matter of the custom be agreeable to reason; c) that it be introduced by a perfect community; d) that the acts be exercised freely and not by coercion, and indeed with the intention of obligating oneself; e) that it proceed from due prescription, namely through 40 continuous and complete years.

281. 2. Abrogating custom (clothed with due conditions) can abolish an ecclesiastical law either totally or partially, as is manifestly taught in the Decretals of Gregory IX¹⁴⁵ and in the Code of Canon Law c. 27, § 1. Nor is there any ecclesiastical law which cannot be abrogated by a contrary reasonable custom. For the text of the Decretals is entirely universal. Hence even the disciplinary decrees of the Council of Trent¹⁴⁶ can be abrogated through reasonable custom, i.e., a custom clothed with the qualities enumerated above; indeed, some of those decrees truly seem to have been abrogated in some regions. But if some custom is expressly reprobated in law, it is not reasonable and therefore cannot abolish or establish law, unless, however, the conditions of things have been entirely changed. Hence, for example, a custom introducing a new matrimonial impediment or contrary to existing impediments is reprobated and is of no value.¹⁴⁷

¹⁴⁵ "No one of sound mind understands that natural right ... by any custom whatsoever (which in this part is to be called corruption) can in any way be derogated from. Although also the authority of long-standing custom is not cheap, nevertheless it is not going to have force to such a degree that it ought to generate prejudice even to positive right, unless it has been reasonable and has been legitimately prescribed" (c. 11, X, 1, 4).

¹⁴⁶ Cf. Wernz, Ius Decret. I, 194.

¹⁴⁷ Cod. iur. can. c. 27, § 2 and c. 1041.

St. Thomas, I-II, q. 97, a. 3.

404. Custom, considered as a fact, properly is use or manner, that is, frequent repetition of the same acts, a frequent mode of acting, and the inclination arising from this to act similarly. But in the present matter, in juridical speech, it designates right introduced by the use or manners of the people. It is usually defined: legal right introduced by the long-standing manners of the community with some consent of the legislator.

Another custom is according to law (inhesive or declarative), which interprets a law previously enacted; another against law, which abrogates a law or derogates from it; another beside law, which introduces a new law, as is that which is now strengthened by can. 135.

1. Hence special promulgation is not required. Hence the nature of the thing is not changed when custom is reported in a written document, unless the writing itself is formally promulgated.

The conditions required for custom are:

a) On the part of the acts, that they be 1) frequent, that is, often repeated; 2) long-standing, that is, exercised for a long time; 3) uniform or constant and therefore not interrupted, whether on the part of the people or on the part of a superior contradicting; 4) public and notorious, otherwise it would not be the custom of society as such; 5) deliberate or freely placed, and not placed from force or fear or error, by which the consent of the community is impeded; 6) practiced not by a few particular persons, but by the greater part of the community, or of the part for which a law can be made (can. 26), for example, of a diocese, class of faithful, religious order, or its province, but not of a parish or religious house.

b) On the part of the matter, that the custom be reasonable (can. 27), at least negatively, and therefore that the conditions necessary for law be present.

c) On the part of the subjects, the intention of obligating themselves (or of de-obligating themselves, or of understanding and fulfilling the obligation in such a mode, or of extending or limiting the obligation to this), which can be manifested by word or deed of the superior or subjects, by practice, by the common judgment of experts, etc.: thus customs from gratitude or devotion, for example, of hearing three Masses on the Nativity of the Lord, of signing oneself with blessed water, of saying "The Angel of the Lord...," are not obligatory.

d) On the part of the legislator, consent (can. 25), whether special, express or tacit, which is gathered from action or omission, or general or presumed, given to every legitimate custom, or of approving any customs whatever adorned with certain conditions.

405. What the Law establishes concerning custom. - According to the new Law:

1. To introduce a custom beside law, there are now required forty continuous and complete years (can. 28); when the required time is present, the custom is called prescribed (can. 27).

Nevertheless custom differs from prescription:

a) the latter is the mode by which private persons acquire a right; the former induces an effect for the community;

b) for prescribing, good faith is required by which someone is ignorant that the thing is not his; for custom it is not always required that those introducing it be ignorant that the law exists;

c) for prescription the consent of him against whom prescription is made is not required; for custom the consent of the legislator is required;

d) for prescription and custom a different continuous time is required: for prescription thirty years ordinarily suffice, or another lesser time determined by law; for custom, a time of forty years.

2. Custom against law or beside law is revoked by contrary custom or law (can. 30).

3. Nevertheless, unless it makes express mention of them, a law does not revoke a centenary or immemorial custom, just as neither does a general law revoke particular customs (can. 30).

Hence, by promulgation of the new Code, centenary and immemorial customs were not removed, unless they are expressly reprobated there (can. 5).

406. In what way custom obtains the force of law. - Custom, furnished with the due conditions, just as it can make laws, so also can abrogate them and derogate from them. This happens in two ways:

a) By way of connivance or special personal consent, with the superior personally knowing and consenting either expressly or tacitly, that is, not contradicting when he conveniently can and ought to contradict: for he is not judged to consent if the custom is unreasonable, for example, one which is contrary to divine right, offers an occasion of sinning, is harmful to the common good, dangerous to faith, pernicious to ecclesiastical discipline, divine worship, the liberty of the Church, or is expressly reprobated in law as an abuse or corruption (can. 27, § 2), such as a custom contrary to the preceptive rubrics of the Mass (can. 818), unless it is so called because of circumstances now changed. This of itself does not require time but has force as soon as it is clear that consent is present: thus a law which was never received by use ceases to obligate after a few acts tolerated by the superior.

b) By way of prescription, or by consent not special but general, not personal but legal or juridical (which is contained in a law which ratifies all legitimate customs), with the superior even ignorant of the custom and giving presumed consent: this requires that it be reasonable and that it have been continued for a long time, and not interrupted; otherwise it does not sufficiently appear that the law is not accommodated to the manners of the subjects, nor could the legislator be presumed to consent. How much time is required must be determined by the judgment of the prudent.

But now it is universally established in law that no custom can derogate from ecclesiastical law unless it has legitimately prescribed through forty continuous and complete years; but against a law which contains a clause prohibiting future customs, only a centenary or immemorial custom can prescribe (can. 27, § 1).

Wherefore it has seemed to some that a custom tacitly approved by way of connivance no longer has force unless it has also endured without interruption for forty years (or one hundred). But they do not demonstrate this efficaciously.

407. In what way custom against law can be introduced. - To understand how a custom against law can be introduced, even without sin, let St. Thomas be heard, q. 97, a. 3, ad 2: "Human laws fail in some cases. Hence it is possible sometimes to act beside the law, namely, in a case in which the law fails (epikeia), and nevertheless the act will not be evil; and when such cases are multiplied on account of some change of men, then it is manifested through custom that the law is no longer useful; just as it would also be manifested if a contrary law were promulgated by word. But if there still remains the same reason on account of which the first law was useful, custom does not conquer law, but law conquers custom; unless perhaps the law seems useless for this reason alone, that it is not possible according to the custom of the country, which was one of the conditions of law. For it is difficult to remove the custom of a multitude."

From this last point it is already understood that it is not necessary that every custom against law be introduced by acting legitimately and without sin; as moderns are accustomed to note with St. Alphonsus, Theologia Moralis, book I, n. 107: "Custom against law does not require good faith, but can also be introduced by sinning. For custom has a threefold state. In the beginning those introducing it against law all sin (unless they are excused by some reason). In progress, those using it, already introduced by their elders, do not sin (in good faith), but can be punished by the prince. But in the end they neither sin nor can they be punished when using it, already prescribed."

408. Custom can do everything which the legislator can do, for example, abrogate obligation in conscience as to fault and not as to penalty, or vice versa; likewise abrogate invalidating laws; indeed even laws which are borne with the clause: notwithstanding any custom whatever to the contrary, because this regards customs already existing, but does not impede future ones. But it cannot change the law against the legislator when he wills that it not be changed by custom, as if he contradicts this; whence if the law was enacted with the clause: notwithstanding any custom whatever, even future, the law does not presume consent unless the custom is centenary or immemorial (can. 27).

409. Custom ceases 1) from within, if it has become unreasonable;

2. from without, by contrary custom legitimately prescribed;

3. likewise by a law which suppresses it. Nevertheless:

a) Special laws of places, as particular customs, statutes, and privileges, because although they are reasonable, they can easily be unknown to the universal legislator, are not judged abrogated by a contrary universal law, even if it is borne with the clause: notwithstanding custom; unless the law indicates this specially and expressly, for example, by saying: notwithstanding nothing, or notwithstanding any contrary custom whatever (can. 30); nevertheless they are removed by a law enacted by the particular legislator of the place.

b) Likewise an immemorial or centenary custom is not judged abrogated even by a law which is borne notwithstanding any custom whatever, unless it expressly indicates this, for example, by adding "even centenary," or implicitly, by declaring it "unreasonable or a corruption" (can. 30).

Custom considered causally, or as others say, custom of fact, is the frequency of similar acts of some community; but regarded formally, or custom of right, it is a certain right arisen from the frequency of similar acts of some community. Custom of fact often is nothing but an abuse, and the discourse here is not about it, but only about custom of right.

Custom is chiefly divided into custom beside the law, according to the law, and against the law. The first is a certain new law, which therefore constitutes right where written law commands or prohibits nothing. The second is that which interprets or confirms a law already existing, and this constitutes right, not where law is wholly lacking, but where it is lacking as regards interpretation, or firmness and observance. Finally the third is that which is established against the reception of a law, or for abolishing a law already received, and this establishes derogatory right where a written abrogating law is lacking. - Cf. Bouix, de Princip., pp. 350 and seq.

I say. Custom, clothed with the due conditions, introduces right, and has force after the manner of written law. This is clear from very many places of canon law, especially from cap. In his, Dist. 11, from the unanimous consent of the Doctors, and specially from St. Thomas, 1-2, q. 97, art. 3.

Question 1. What are the conditions required for legitimate custom?

Response. Several are enumerated by the Canonists; the chief ones are the following:

(a) On the part of the custom itself it is required that it be reasonable, not indeed in this sense, that it is not sinful, for ordinarily those who first introduce it against the law sin, but that it is not against divine or natural right, nor breaks the nerve of ecclesiastical discipline. - Cf. St. Thom. ib. - Bouix, de Princip., p. 362.

(b) A community which is at least capable of receiving ecclesiastical law can introduce a custom which obtains the force of law (Can. 26), and the reason is that custom is a law which binds the whole community, and therefore must arise from the whole community. Cf. Scavini, n. 285. - Bouix, de Princip., p. 357.

(c) On the part of the acts it is required that these be 1st. free, because otherwise the efficient cause would be lacking, namely the consent of the people; 2nd. frequent and uniform, otherwise it could not be known that this consent is present; 3rd. continuous, because prescription ceases through interruption; 4th. done with the intention of obliging themselves or of introducing a custom, because custom is a law which does not oblige unless there is present a will of binding; 5th. of long duration, otherwise prescription would not be had. - Cf. Bouix, ibid.

(d) Custom in the Church obtains the force of law solely from the consent of the competent ecclesiastical Superior (Can. 25). For if the Superior in no way consents, and a fortiori if he resists, nothing can be established by subjects for the good of the community. Personal consent is either express or tacit; the first is easily understood; the other is present when the Prince knows the custom and yet does not contradict it, though he can conveniently contradict it. But legal consent, which is also called general or juridical, is that which is given through law, or through right itself, which in advance and universally approves all reasonable and legitimately prescribed customs. For consent of this kind it is not required that the Prince know the custom. The opinion of the Doctors is most common that legal consent is admitted by canon law as sufficient for strengthening a custom, provided that it is reasonable and has endured for the time required for prescribing. This is clear from cap. Cum tanto, 11, tit. 4, de Consuetudine, lib. 1, Decret. - Cf. Reiffenstuel, in 1, Decret., tit. 4, § 5, n. 138. - Bouix, de Princ., p. 370.

Question 2. Whether length of time is always required, and what sort it ought to be?

Response. If the Prince expressly or tacitly consents to the custom, length of time is not required; for as soon as the will of the Prince accedes to the will of the subjects, all are obliged. But it is required if custom is to be strengthened through legal consent: for thus the laws demand, and indeed wisely, lest more quickly than is fitting, while the Prince is unaware, new laws be introduced or old ones be abrogated.

§ 1. No custom can in any way derogate from divine right, whether natural or positive; but neither does it bring prejudice to ecclesiastical right, unless it has been reasonable and legitimately prescribed through forty continuous and complete years; but against an ecclesiastical law which contains a clause prohibiting future customs, only a reasonable centenary or immemorial custom can prescribe.

§ 2. A custom which is expressly reprobated in law is not reasonable (Can. 27).

A custom beside the law, which has knowingly been observed by the community with the intention of obliging itself, introduces law, if likewise it has been reasonable and legitimately prescribed through forty continuous and complete years (Can. 28). - Cf. St. Alphonsus, n. 107; and Hom. Ap., n. 11.

Note. - With the prescript of can. 5 remaining firm, a custom against the law or beside the law is revoked by a contrary custom or law; but, unless it shall have made express mention of the same, a law does not revoke centenary or immemorial customs, nor does a general law revoke particular customs (Can. 30).

I say 1° : Reasonable custom can introduce law where there is none, as well by way of connivance as by prescription¹. ¹ Ibid., likewise ad 3.

[It is proved from both laws. From canonical law, cap. In his, dist. 11, where it is said from Aug. ad Casulanum, epist. 36 : « In those matters concerning which divine Scripture has established nothing certain, the custom of the people of God or the institutes of our forefathers are to be held for law. And as corrupters of divine laws, so despisers of ecclesiastical customs are to be coerced. » Likewise cap. Illa, dist. 12, from the same Aug. ad Januarium, epist. 54 ; who in each epistle reports the celebrated saying of Ambrose : « Whichever church you come to, keep its custom. » And elsewhere. From civil law. L. De quibus, ff de legibus, and elsewhere.]

It is proved by reason. In reasonable custom can concur all the things required for law, namely honest matter useful to the common good, the intention of binding oneself and legitimate authority, whether of the community, if it be free, or of the prince manifestly approving, either personally or legally, that custom and intention. Therefore.

I said : « Of the prince approving, either personally or legally, » because a twofold consent of the prince is distinguished, one personal, the other juridical or legal : Personal, when the superior, aware of the custom, approves it, either expressly by word or by some manifest act, or tacitly, by not resisting it while he easily could. Juridical or legal consists in this, that the laws or predecessors of the present superior have declared and enacted that such custom introduces law; to which consent, as is plain, it is not required that the custom become known to the superior. That therefore custom may introduce law by way of connivance, personal consent is required, at least tacit; but that it may introduce it by way of prescription, legal consent suffices.

[You will ask whether all customs long-lasting and general obtain the force of law.

Answer. Customs which consist in the frequent repetition of the same acts, however long-lasting and general they be, do not obtain the force of law unless they were observed with the mind of binding oneself. The reason is, because custom is taken for law. But law is constituted through the will of obliging. Therefore. Whence the custom of saluting B. M. V. thrice a day at the tolling of the bell, of purifying oneself with blessed water at the entrance of the church, etc., never obtained obligatory force of law, because these acts were always frequented from mere devotion. It is known moreover whether a custom was introduced with the mind of binding oneself, if it be observed constantly and universally and not without considerable inconvenience; if transgressors are punished; if pious men commonly so judge. But in doubt whether a custom be from devotion or obligation, whether under grave or under light matter, whether it oblige under sin or only under penalty, the more benign part is to be held; for no law obliges unless it stand established concerning it. So St. Ligor., lib. I, n. 107.]

I say 2° : Reasonable custom can abrogate human law, even irritant, or derogate from it, as well by way of connivance as by prescription¹. ¹ Ibid.

Of the way of connivance there is no difficulty, because law hangs upon the will of the legislator; whence, the will of the legislator being changed, and this manifested outwardly, the law ceases. But through free connivance toward a custom contrary to the law is manifested in fact the change of will in the legislator. Therefore. I said : « Free connivance, » so that the legislator can easily hinder it and does not hinder it; for if he tolerate it because he cannot resist, or defer to another time, it is not free consent sufficient to abrogate law by way of connivance.

The second part is proved from both laws. From canonical law. Cap. Cum tanto de consuetudine, Decretal. lib. I, tit. 4, c. 11, it is said : « Although long-standing custom has no mean authority, yet it shall not prevail so far as to generate prejudice against positive law itself, unless it be reasonable and legitimately prescribed. » By which exception the canon plainly signifies that reasonable custom legitimately prescribed can derogate from human law. From civil law, L. De quibus, ff de legibus : « Most rightly has this been received, that laws are abrogated not only by the suffrage of the legislator, but also by the tacit consent of all, through disuse. »

It is proved by reason. Human laws are subject to the authority and will of men, no otherwise than other human things and rights. But human things and rights can be changed and transferred independently of the will of their lords through the authority of law, as happens in prescription. Therefore likewise human laws can be changed through the authority of law, independently of the personal will of legislators. — I subjoin. But the laws decree that reasonable custom legitimately prescribed prevail over human law, as is plain from the laws praised above. Therefore.

Hence you will infer that no determined time is required in order that custom abrogate law by way of connivance, but that it suffice that connivance or personal consent of the legislator stands established; because the law ceases not by right but by the changed will of the legislator himself. When however one proceeds by way of prescription, determined time is required; because then it ceases not from the changed will of the legislator, but from the disposition of law, and therefore time determined by law is required in order to prescribe legitimately. Whence the common opinion is, that in order that custom prescribe against civil law, ten years are required; against ecclesiastical law, forty years; because thus common law disposed for the prescription of other civil and ecclesiastical rights.

[Prescription of forty years seems required against ecclesiastical laws, from cap. De quarta, lib. II Decretal., tit. 26 de praescript. and cap. Ad aures, ibid., where is read : « Prescriptions of forty years exclude every action altogether. » But Lessius, lib. II, chapter 6, dub. 14, n. 17, and others cited among the Salmanticenses, de Legib., chapter 6, punct. 3, § 2, n. 17, say probatively that ten years suffice, whether the laws be received or not; because no greater reason is to be had of custom against ecclesiastical law than against civil, since no law distinguishes between these laws. Lessius answers moreover to the texts cited, that they speak not of laws, but of rights and goods immovable of the Church to be prescribed; but under the name of rights the laws of the Church do not come. So St. Ligor., lib. I, n. 139.

You will ask 1° whether good faith be required in order to prescribe against law.

Answer negatively, with St. Ligorio, lib. I, n. 107. Even by sinning can custom be made. Salmant., de Legib., chapter 6, punct. 3, § 1, n. 11, with Suarez. For custom holds a threefold state. In the beginning, all sin who introduce custom against law. In progress, those sin not who now use it, already introduced by their forebears, but they can be punished by the prince. At the end they sin not, nor can they be punished, who use it now prescribed. So Salmant., ibid. n. 13, and others. The reason is, because, when custom is clothed with all the conditions required, among them is found the consent of the legislator such as was described above.

You will ask 2° whether custom can prevail, if a law be passed with the clause : « Notwithstanding any custom whatsoever. »

Answer. The clause is commonly understood of a contrary custom already existing, not indeed of a future one. Salmant., de Legib., chapter 6, punct. 4, § 2, n. 43, and others. But if the clause reject any custom whatsoever, even future, Salmant., ibid., n. 43, with Suarez, say it is more probable that such a custom can abrogate the law. For if some custom must be judged unreasonable at the time the law is passed, it can become reasonable at future time, unless it be adverse to natural or divine law. St. Ligor., ibid., n. 108.]