Custom

202. Its derogatory force. 1. That ecclesiastical custom, concerning which alone there is question here, has the force of abrogating law is established from canon law, which expressly attributes this efficacy to custom.¹ And indeed the force of custom and of law is the same; but a later law can abrogate an earlier one; therefore custom also can do this, provided it is clothed with the due conditions.

2. Custom cannot abrogate natural law, because this is immutable, nor positive divine law, because the force of custom is derived from human authority, namely from the consent of the human legislator; but human authority can do nothing against divine law. Rather, custom can abrogate only ecclesiastical law.

Although custom does not have the force of abrogating divine law, it can nevertheless interpret it, i.e. indicate how the law, according to the mind of the legislator, is to be understood and observed. Yet this custom, interpreter of divine law, must be governed by the infallible judgment of the Church, which alone is the authentic interpreter of the institutions and commands of Christ.

3. There is no ecclesiastical law which cannot be abrogated by contrary custom; for the texts of law proving custom are altogether universal.

Therefore legitimate custom can abrogate even:

a. A law expressly prohibiting contrary custom.

Indeed while the same circumstances remain on account of which the custom was prohibited, this custom cannot obtain force, since it would then be unreasonable; but once these circumstances have changed, nothing prevents the contrary custom from receiving the force of law, because it can be reasonable and can be approved through the consent of the legislator.²

b. An invalidating law: for an invalidating law can be abrogated by another law; therefore also by custom, which is of the same authority. Therefore even the invalidating impediments of marriage of human right can be abrogated by legitimate contrary custom.

c. Some existing custom.

Therefore universal custom can abrogate universal custom, and particular custom can abrogate particular custom; but a particular custom can derogate in part from universal custom, namely in that place in which the particular custom has prevailed.

¹ C. Quum tanto (11) fin. De consuetud. (I. 4), whose final words are these: "although the authority of even long-standing custom is not worthless, nevertheless it will not be valid to such an extent that it ought to generate prejudice even against positive law, unless it has been reasonable and legitimately prescribed."

² The doctrine of a few theologians, that against the disciplinary decrees of the Council of Trent no custom is admitted, cannot be demonstrated by sufficient arguments. Cf. Biederlack, Die Gewohnheiten gegen die Disciplinardekrete des Trienter Konzils (Zeitschrift f. kath. Theol. VI (1882) S. 438 ff. Wernz I. n. 194.

203. Conditions which are required in order that custom abrogate law:

1. The consent of the legislator; but legal consent suffices.

a. For law cannot be introduced except by legitimate authority, which indeed cannot be the will of the people exercising the custom, but only the will of the legislator himself.

From this it is clear that the consent of the legislator is the true efficient cause of custom which has legitimate value.

b. In order that custom obtain the force of law, personal consent is not required, but legal consent suffices: for nothing prevents the legislator from establishing by a universal law that custom endowed with due qualities have the force of law; but if the legislator has done this, custom receives the force of law without further consent; and this has been established by the law itself.¹

a. Consent can be personal, by which the superior himself approves the custom, or legal, by which the right or universal law approves it. Personal consent supposes knowledge of the custom; legal consent does not require it. Personal consent is express if the legislator gives permission of introducing the custom, and it is tacit if the legislator, conscious of the custom, does not resist it, although he could easily resist. Wherefore a custom which the legislator merely tolerates with prudent silence cannot obtain the force of law through personal consent.

b. Legal consent is customarily defined as a previous approbation made through a universal will expressed in law, of approving any custom whatsoever clothed with due conditions.

c. If personal consent is had for custom, even only tacit consent, legitimate time for introducing the custom is not required, but the obligation of the law immediately ceases.

2. On the part of the matter, that the custom be reasonable.

In order that it be reasonable, it is not required that it be begun without sin: for those who introduce a custom contrary to law generally sin in the beginning. Nor is it required that it be positively reasonable, i.e. that it be commended by a special reason or that it be better and more perfect than the contrary law, but it suffices that it be negatively reasonable, i.e. that for no reason (neither by natural right nor by divine right) it be reproved, nor offer license and occasion of sinning, nor contain corruption of morals, and therefore in some way contribute to the common good.

3. On the part of the community: a. that the custom be introduced by a community on which a law can be imposed, such as a kingdom, province, city, diocese (but not a parish, family, or private person), a religious order, and probably also a province of a religious order; b. that it be exercised by the greater part of the community: for custom is introduced by the community from the consent of the prince; but only the greater part morally represents the community.

4. On the part of the acts: a. that they be free, i.e. that they proceed neither from fear nor from error or ignorance: for without the consent of the people a law cannot be established through custom; but this consent is lacking if the acts are not free; b. prescribed for the legitimate time: for the law itself requires a certain duration of custom in order that it have legal value: unless it has been legitimately prescribed; c. made with the intention of de-obliging oneself from the law. For this it is not required that the community know the law at least in the beginning and nevertheless not observe it, but it suffices that with the opinion that the law does not exist, it in good faith does not observe it. Wherefore that which the faithful omit from lack of consideration or levity can never obtain the force of legitimate custom.

a. How much time is required for introducing custom is nowhere found defined. In order that obligatory custom obtain the force of law, ten years is required and suffices; but in order that derogatory custom have value, forty years are required, although several of the more recent theologians think that ten years suffices.²

b. Supposing a positive doubt concerning custom, so that on the one side it is truly probable that all things are had which are required for introducing legitimate custom, and in like manner on the other side it is probable that something of those things is lacking which are required for legitimate custom, the following distinction must be made: a. in doubt concerning custom beyond law, the custom does not yet oblige: for it is doubtful whether the custom has obtained the force of law; but a doubtful law does not oblige; b. in doubt concerning custom against law, the law no longer obliges: for by the fact that the contrary custom probably de-obliges from the law, the law itself has become doubtful; but a doubtful law does not oblige.

¹ C. Quum tanto (11) fin. De consuetud. (I. 4).

² Cf. Benedict XIV, De synodo l. 13. c. 5. n. 4. Wernz I. n. 190. IV.

A LAW may cease to bind in various ways. It may be abrogated or altogether withdrawn by the legislator, or his successor, or his superior. For he who made the law can unmake it. Derogation is the annulling of some portion of the law, while the rest remains intact. The law may fall into desuetude from non-observance, or on account of a contrary custom being introduced. It may also cease to bind because it no longer attains the purpose for which it was made, and has become useless. It may cease to bind in particular cases because a dispensation has been obtained. Something must be said on custom, on a law becoming useless, and on dispensations, This will be done in the three following sections.

A custom in the technical sense must be distinguished from a mere use. A use is a constant manner of acting but without binding force. Thus we take holy water on entering the church, and receive blessed ashes on Ash Wednesday, and palms on Palm Sunday, but there is no obligation of doing so, and no sin is committed if we neglect these pious practices; they are only uses. A custom has the force of law from which it only differs in its origin. It arises from the repeated acts of the community which it binds. However, inasmuch as in ecclesiastical matters at least, the community as such has no legislative authority, the binding force of ecclesiastical. customs is derived from the express, tacit, or legal consent of the legislative authority. Legal consent to all customs which have the requisite qualities is given in the last chapter of the Title on Custom in the Decretals, and Can. 27.

A custom is said to be according to the law if it confirms and interprets the law by long-continued usage.

It is beside the law if it introduces a new law in a matter for which no written law exists.

It 1s contrary to the law when the acts by which the custom was introduced were forbidden by law. There is nothing repugnant in the notion of a lawful custom being introduced by wrongful acts, for when the custom is formed the acts cease to be forbidden, because the contrary law has in fact ceased to exist.

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.

I. Notion. Habit is here understood as a certain disposition acquired from multiplied similar acts, by which someone easily proceeds to similar acts. It is also called an acquired habit. It is good or bad according as it disposes toward good or bad acts.

II. Division. A bad habit, of which there is chiefly discussion here, is distinguished into voluntary and non-voluntary. It is voluntary when someone does not try, according to his powers, to uproot the habit, whether it was contracted advertently or inadvertently.¹ If someone tries to do this according to his powers, it is called non-voluntary.

¹ If someone has advertently contracted a habit and does not try to uproot it, it can be called voluntary under a twofold heading.

III. Influence on the free. Habit, or acquired habit, removes or lessens the free insofar as it removes or lessens the deliberation of the intellect. Yet it increases the voluntary as such, insofar as it causes someone to be borne into the act with greater inclination. Besides, a habit, say, of blaspheming, etc., generally leaves some advertence or deliberation, indeed for the most part such deliberation as suffices for the perfectly voluntary.

"Although," as St. Alphonsus observes, "sinners entangled in depraved habits have a less ready cognition than others, nevertheless they always have some cognition of their crimes sufficient to render their acts deliberate and mortal. For since they themselves make little of sin, there is not made in their souls that sensible and memorable impression which is made in another who has a less depraved conscience; and hence it happens that in their memory there does not remain a trace of that actual cognition which they sufficiently had before concerning the sin, or the trace is so slight that, when questioned, they easily answer that they did not advert; but a cautious confessor ought not to give credence to them" (St. Alphonsus, V, 4).

But with respect to those who have retracted the habit and fight it as they can, Reuter rightly notes: "It happens not rarely that a man who before was accustomed to sins in venereal matter, or whose imagination has been infected by venereal images from long-lasting temptations, is immediately carried off into venereal delight and thinks that he consents, but soon retracts himself and shudders, fearing lest he has consented. But let him not judge that he has consented. For although the sensitive appetite has conceived delight, and some connatural complacency of the will also has followed, this was not free. For old habits connaturally operate the first motion, and man cannot repress it before it is present.... From the same reason authors note that it often happens that a man who has begun to be seriously converted dwells for a long time on a thought and yet does not consent, because acquired habits are operating, and a man occupied with other things cannot so quickly turn his mind to resisting. The common opinion of many is also that reason, through troublesome incidents, often even comes into delight, and this for a sufficiently long delay before it becomes fully master of itself through mature deliberation; and in such a matter men ought not to fear mortal sin. If persons of this kind afterward examine themselves, and at first seem to themselves not to have consented, or only doubt or fear about consent, let them presume that they did not consent, and let them not depart from this resolution."¹

¹ Neo-Confessarius, nn. 261-268.

How greatly it matters that a man be clothed with good habits from tender age can be hidden from no one. For without habits he is wavering toward every good, inconstant, and liable to every assault of temptation; nor, in a doubt about consent, will presumption favor him. But with habits rightly rooted, by which he puts on, as it were, another nature over himself, he will stably do good; nor, in a doubt, is he easily to be believed to have yielded to sin. Therefore parents, teachers, and confessors should try with all force to uproot bad habits as they arise; and with watchful diligence, exhortation, praise, and reward, let them foster the beginnings of good habits.

I. Notion. Custom, named from consuesco or consuefacio, can be taken both for fact and for right. Custom of fact is the frequency of similar acts in some community. Custom of right is a right arisen from custom of fact, and is customarily defined: a right of the people, established by morals, with the consent of the legislator acceding. We are treating custom accepted in this way.¹ It is said:

1. Right, that is, a law commanding, prohibiting, or permitting something.

2. Introduced by the morals of the people; namely, insofar as the aforesaid morals gave occasion to the consent of the legislator, by whom finally the right must be established (St. Thomas, I-II, q. 97, a. 3, ad 3; St. Alphonsus, I, 107).

3. With the consent of the legislator acceding; for custom in the Church obtains the force of law solely from the consent of the competent ecclesiastical Superior (can. 25).

The consent of the legislator, if there is question of the supreme legislator, that is, of the Supreme Pontiff, is distinguished as twofold: personal and legal.

Personal consent is that which the legislator gives specifically for this or that determined custom. This is twofold, express and tacit, according as the legislator approves the custom explicitly, or by conniving, or not contradicting, when he could conveniently contradict.

Legal consent (general, juridical) is that which is given through law, or through the law itself, insofar as, namely, the legislator generally and antecedently consents to all customs furnished with certain conditions. Personal consent supposes that the custom is known by the legislator; but for legal consent, knowledge of the custom in the legislator is not required (St. Alphonsus, I, 107, 5°).

¹ Cf. Bauduin, De consuetudine in iure canonico; Kreutzwald, De canonica iuris consuetudinarii praesumptione; Wernz, Ius Decr., t. I, nn. 184-194; Vlaming, Instit. iuris eccles., nn. 32-40; Vermeersch, Epitome Iuris Canonici, 4th ed., I, n. 108 sq. Therefore we abstract from the right which a private or singular person can sometimes acquire through frequency of acts.

II. Division. Custom is chiefly distinguished:

1. Into custom according to law, beyond law, and against law. The first is that which confirms by use a law already established. The second is that which establishes a new law. The last is that which is opposed to a law and brings it about that the established law is abrogated or derogated from.

2. Into universal and particular. The first is that which has force in the whole kingdom, in the whole Church, or in the whole Order or Congregation; the second is that which has force only in some part, for example, in a province, diocese, parish, or convent.

3. Into ordinary and extraordinary. Ordinary is a custom of forty years. Extraordinary is centenary or immemorial, that is, one whose beginning does not exist in memory (can. 27).

4. Into custom by way of connivance and by way of prescription, according as it obtains the force of law through personal or legal consent. Many, however, call customary right introduced by way of connivance customary right improperly so called.

III. Efficacy. Legitimate custom has the force of law, that is, it either abrogates or derogates from a prior ecclesiastical law, or constitutes a new law. Moreover, it can regard a commanding law as well as a penal and invalidating law (St. Alphonsus, I, 107, IV, 108). I said ecclesiastical law; for, as is plain, custom cannot abrogate divine law, whether natural or positive (can. 27, § 1). But that an ecclesiastical law can be abrogated, and likewise that a new law can be constituted through custom by way of connivance, that is, through the personal consent of the legislator, is clear from the nature of the matter. That the same can generally be done by way of prescription is deduced from can. 27, § 1, and 28.¹ I said generally; for:

1. Custom cannot, by way of prescription, derogate from rubrics contained in liturgical books. For the Supreme Pontiffs and the Sacred Congregation of Rites have repeatedly signified that customs against the rubrics are abuses and corruptions;² considering this, legal consent cannot be presumed. This, however, does not prevent, first, the use against rubrics from being legitimated by way of connivance, or by force of the personal consent of the legislator, and thus, although it was an abuse before personal consent, when consent accedes it ceases to be an abuse. Nor do the things said above prevent, second, a use contrary to the rubrics from being tolerated until it can conveniently be removed by the Bishop.³ What has been said about rubrics contained in liturgical books you should also apply to decrees of the Sacred Congregation of Rites.⁴ That these things have not been changed by the new law follows from can. 2.

2. It is disputed whether a custom which is expressly reprobated by law can, by way of prescription, become legitimate. Some deny it, because a custom of this sort is said by can. 27, § 2, not to be reasonable. Others think that a custom of this sort, when circumstances have changed, can become reasonable and therefore, once the things to be posited have been posited, legitimate (St. Alphonsus, I, 108; cf. n. 194).

¹ In Holland, civil law cannot be abrogated by custom.

² Constitution of Innocent XIII Apostolici Ministerii, May 23, 1723, renewed by Benedict XIII through the constitution In supremo, September 23, 1724; S.R.C., January 10, 1852, n. 2993, ad 1, 2, and 4. Cf. other things in Victor ab Appeltern, Manuale Liturgicum, t. I, pp. 22 and 23.

³ Cf. S.R.C., May 9, 1857, n. 3043, ad V; n. 3044, ad V.

⁴ S.R.C., August 3, 1859, n. 2792, ad 2.

IV. Requisites in order that a custom be efficacious, that is, either abrogate a law or introduce a new law.

1. In order that custom abrogate a law by way of connivance, there is required and suffices, besides a certain frequency of acts of the community, for there is question of a law to be abrogated dependently upon the morals of the people, that the personal consent of the legislator (or of his successor or superior) accede, whether express or tacit (can. 25). The reason is that the continuance of a law, equally as its beginning, depends on the will of the legislator. Hence as soon as the legislator consents to a custom contrary to the law, the law ceases. There will generally be sufficient certainty about tacit consent if the legislator permits the law to be commonly infringed, although he could conveniently contradict. If he cannot conveniently contradict, from silence one generally cannot conclude to consent to the abrogation of the law; nevertheless it can happen that the legislator, although he does not abrogate the law, still suspends the obligation of the law until he can urge it more conveniently.

2. In order that custom introduce a law by way of connivance, besides a certain frequency of acts of the community, there is required: first, that it be reasonable, that is, such that it can be the object of law. What things can be the object of law was explained in n. 116. There is required, second, that the personal consent of the legislator accede, whether express or tacit. For no law can be constituted without the will of the legislator (can. 25). Tacit consent of the legislator can be established, for example, from the fact that he punishes transgressors of the custom.

3. In order that custom abrogate a prior law or introduce a new one by way of prescription, there is required: first, a legitimate subject; second, frequency of acts; third, an intention of abrogating or introducing law; fourth, a reasonable object; fifth, a definite time. It is said:

a) A legitimate subject; namely, a community which is capable at least of receiving an ecclesiastical law. Thus can. 26, which indeed speaks expressly only about a law to be introduced, but there is no reason why these things cannot be applied to a law to be abrogated. Which communities are capable of receiving an ecclesiastical law was said in n. 73.

b) Frequency of acts; namely: first, the custom must proceed at least from the greater part of the community, or from those in the community whom the law regards; second, the acts must be notorious at least with notoriety of fact and not occult, similar or uniform, and repeated several times according to the diversity of the matter, in accordance with the estimation of a prudent man (St. Alphonsus, I, 107, IV).

c) An intention of abrogating or introducing law, that is, an intention which inclines toward abolishing or establishing a law. For there is question of the abrogation or passing of law dependently upon the morals of the people. But such abrogation and such passing of law are not considered to have place unless the people incline toward abrogating or constituting a law. Besides, as regards a new law to be constituted, that there is required in the community an intention of obligating itself is clear from can. 28. Nevertheless, it suffices that the aforesaid intention be present interpretatively; this has place when the people does not actually incline toward abrogating a law because it is ignorant of it, but, if ignorance were lacking, would incline toward abrogating it; or when it is not actually inclined toward constituting a law because it erroneously thinks that it already exists, but, if error were lacking, would incline toward constituting it. These things suffice because they sufficiently argue the disposition of the people, to which the legislator is considered to acquiesce.

Corollary I. Where there is question of abrogating a law, it does not matter whether the people knows the law or is ignorant of it, in other words, whether it transgresses the law in good faith or in bad faith. For in either case there can be an intention alien from the law. But it does not suffice that the community act against the law from fear or from mere ignorance. Hence a custom would not abrogate a law if the people were so disposed that, if it knew the law, it would promptly observe it. In this hypothesis there is in no way an intention opposed to the law (St. Alphonsus, I, 107, 110; Homo Apostolicus, tr. 2, nn. 79 and 80; Istruzione e Pratica, c. 2, nn. 84 and 85). But since a law is generally not unknown by the community, a custom against law generally "has a threefold state. In the beginning, those introducing the custom against the law all sin. In progress, those using the custom already introduced by their elders do not sin, but can be punished by the prince. In the end, those using it after it has already prescribed neither sin nor can they be punished" (St. Alphonsus, I, 107, 2°).

Corollary II. In order that custom introduce a new law, it does not suffice that the people observe it from mere error, that is, only because it erroneously thinks that the law exists, or from mere devotion, gratitude, or civility. The reason is that in that hypothesis there is lacking an intention of obligating itself. Hence the custom, for example, of hearing three Masses on the Nativity of the Lord or of receiving the sacred Ashes on Ash Wednesday does not oblige (St. Alphonsus, I, 107, 4°).

d) A reasonable object (can. 27 and 28).¹ Furthermore, a custom against law is considered reasonable if the legislator, considering the circumstances, could validly and licitly abrogate the law. But a custom by which a new law is introduced is reasonable if it can be the object of law according to what was explained in n. 116.

A custom is unreasonable: first, if it is opposed to divine law, whether natural or positive; second, if it is the tinder or occasion of sins, so that it is, as it were, remotely opposed to the law of nature;² third, if it breaks the sinew of ecclesiastical discipline,³ that is, if it tends not only to abolishing one or another law, but to subverting authority itself, as, for example, a custom of not subjecting oneself to a visitor; fourth, if it is opposed to the public good or, in view of the singular nature of some institute, to the common utility, and in general, if it is against ecclesiastical immunities (cf. St. Alphonsus, I, 107, at the end);⁴ fifth, if it is expressly reprobated by law (can. 27, § 2). Furthermore in the latter case it certainly remains unreasonable if the circumstances are not changed. But it is disputed whether such a custom, when the circumstances have changed, can become reasonable; considering the nature of the matter, since many things depend on circumstances, this seems to be affirmed, although the case will not have place very easily (St. Alphonsus, I, 108; Homo Apostolicus, tr. 1, n. 81).

But if contrary future customs are only prohibited, not reprobated, such a prohibition is relative, that is, while the same circumstances remain. Wherefore, when the circumstances have changed, a contrary custom can become reasonable. Today, however, for such a contrary custom a longer time is required, and indeed, as we shall see, a centenary or immemorial custom.

Only the competent superior judges authentically concerning a reasonable object. In the absence of such a judgment, the testimony of even one outstanding doctor, even a modern one, suffices (St. Alphonsus, I, 107, 3°; III, 290, 1025); indeed, for the internal forum any prudent man, especially a confessor, can judge concerning a reasonable object.

e) A definite time. Furthermore, forty continuous and complete years are required. But against an ecclesiastical law which contains a clause prohibiting future customs, only a reasonable centenary or immemorial custom can prescribe (can. 27, § 1). I said that continuous years are required. For custom must be begun anew if it is interrupted, suppose because competent authority contradicts it, or because the greater part again observes the law (St. Alphonsus, I, 107, 3°; Homo Apostolicus, tr. 2, n. 79). If the aforesaid conditions are present, the legal consent of the Supreme Pontiff is had, by which finally the abrogation or introduction of law, whether general or particular,⁵ is accomplished.

Note. In strict doubt whether the requisites for a custom which abrogates a law are present, the law must be observed; otherwise, if the requisites are more probably present (St. Alphonsus, III, 290, 304; IV, 174). In doubt whether the things necessary for a custom which introduces a law are present, liberty persists (n. 226; St. Alphonsus, I, 107, 4°).

¹ Cap. Cum tanto, De Consuetudine, bk. 1, tit. 4.

² c. 10, de consuet.

³ c. 5, cod. tit.

⁴ Cf. cap. 49 (V, 39).

⁵ Where there is question of abrogating or introducing a particular law, legal consent of the particular legislator, that is, of one inferior to the Supreme Pontiff, is not established.

V. Cessation of custom, that is, of the right or obligation introduced through custom. Custom can cease by the same modes by which written law can cease, since there is the same reason of unwritten and written right. Therefore it can cease through cessation intrinsically, through abrogation, etc. As regards abrogation, however, which is made through a new law, note:

1. A general law abrogates a contrary general custom (can. 30; cap. 1 [I, 2] in VI); but not an ordinary particular custom, unless an abrogating or derogating clause is added, for example, "notwithstanding any custom whatsoever"; nor a centenary or immemorial particular custom, unless special mention of it is made (can. cit.), for example, by saying: "notwithstanding any custom whatsoever, even centenary or immemorial," or: "notwithstanding any custom whatsoever, even one worthy of special mention."

2. A particular law abrogates a contrary particular custom. This follows from can. 30, which says only about a general law that particular customs are not revoked by it. St. Alphonsus rightly says: "Bishops, however, by their laws abrogate any particular custom whatsoever, because they are presumed to have full knowledge of the customs of their dioceses" (I, 109).

The Law of Custom.—Custom (i.e., a long-continued practice that has acquired binding force) is able to establish a new law or to do away with an old law. For the will of the lawgiver is manifested not only by words, as happens in the written law, but also and more clearly by repeated and continued acts, as happens in the case of the unwritten law of custom. In a democracy it is the consent of the people who follow the custom as law that imposes the obligation; in a monarchy it is the consent of the ruler who permits the custom.

With reference to their legal effects, there are three kinds of customs: (a) customs according to the law, which are those that confirm by use an existing law; in this way custom interprets law (see 386); (b) customs beside the law, which are those that introduce a new obligation that is not prescribed by any written law; in this way custom establishes law; (c) customs contrary to law, which are those that remove the obligation of a previous law; in this way custom repeals, at least in part, the law to which it is opposed.

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.

Even when a custom has been started in bad faith, it may continue through good faith, and so become not a violation, but an abrogation of the law. Changed conditions may make the law useless or harmful; or the very fact that it is no longer observed may make it too difficult to enforce.

Today customs do not so often attain the force of law. Moreover, so difficult is it to know whether any custom has all the qualities necessary for establishing, modifying, or abrogating a law that only an expert is competent to judge in this matter.

Custom.—In Canon Law custom can interpret, abrogate or introduce law, provided: (a) it has the qualities of legitimate custom, and (b) its existence is proved juridically, or is notorious.

According to their extension, customs are of various kinds. (a) Universal customs are those that prevail in the entire Church; (b) particular customs are those that are confined to a territorial portion of the Church (e.g., a province of the Church or of an Order); (c) special customs are those that are followed in societies that are smaller, but capable of having their own laws (e.g., independent monasteries); (d) most special customs are those observed by individuals, or by communities not capable of having their own legislation (e.g., parishes). At the most, customs of this last class have only the force of privilege (Canon 26).

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).

The effect of the Code on customs previously existing was considered above under 421.

Like the written law, custom ceases: (a) from within, when its purpose has ceased entirely; (b) from without, when it is abrogated by desuetude, or by a contrary law or custom (Canon 30).

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.

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.

138. Questions. - QUESTION 1. What time is required for prescribing against a law?

I answer: It is controverted; nor do Theologians or legal experts agree among themselves, because the laws establish nothing clearly concerning this matter.

Most say that ten years suffice and are required for prescribing against a civil law ². Many affirm the same also for ecclesiastical law, although certain others, with Billuart, require 40 years. - Thus St. Lig., no. 107; Apostolic Man, no. 11. - But this seems to depend not so much on length of time as on the other circumstances considered by moral estimation, having regard especially to the common sense, namely whether the greater and sounder part of the community holds the law as abrogated ³.

² Namely, for this a long time is required and suffices. But the laws hold ten years as a long time. Institutes, On usucaption, beginning, and Law 12, Code, On prescription of long time.

³ In this case the law can cease before ten years, not indeed by force of custom, which by hypothesis has not yet prescribed; but from the consent of the Prince conniving, and thus tacitly taking it away.

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.

140. • QUESTION 4. What is to be held concerning the various ecclesiastical customs proper to France?

I answer: Concerning this matter Bouvier speaks thus in his own words (edition amended according to observations proposed by some Roman theologians), ch. 2, art. 5:

"It is certain that, as regards France, the Supreme Pontiffs do not admit all customs contrary to common law... For although the Supreme Pontiffs have not always been able to protest against these customs, on account of grave inconveniences, whether public or personal, rightly to be feared for themselves or for others, nevertheless it must be believed that by this silence they have not ratified those same customs. Already the Holy See has opened its mind both in particular concerning the obligation of the Bull of St. Pius V concerning the Roman liturgy, and in general concerning pontifical Constitutions regarding general discipline, which it ordered to be admitted by the Council of the Province of Paris of the year 1849, as can be seen in the acts of that same Council.

"It is certain, however, that the mind of the Holy See was not to destroy completely all customs proper to the dioceses of France.

"But which Decrees of common law, or of general Councils, which Apostolic Constitutions have the force of law, and which customs are to be held ratified in the dioceses by consent of the supreme legislator, in doubt recourse must be had to the Holy See. - See case no. 132.

"Many things which regarded benefices, privileges of the external forum, and forms of judgments, are now without object in France. Whence the greatest part of the difficulties of ecclesiastical Law has vanished.

"All Priests can with a safe conscience use customs certainly and without injury to the authority of the Church received among us; indeed in practice they cannot recede from them, because order would be disturbed, for example, if they judged the jurisdiction received from the Bishop insufficient, if they esteemed dispensations conceded as null, etc. It belongs to Bishops, and not to simple Priests, to judge concerning rules of discipline." - Bouvier (edition amended according to observations proposed by Roman theologians), ch. 3, art. 1, § 2.

"... 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.

"... 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.

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.

Whether customs have been suppressed

21. IV. What of custom, I mean of a particular custom of places which has been contrary to this law?

1. No clause of the law abrogates particular customs of places, if they have been legitimate. For they are not taken away by a general law, "unless it is expressly provided in the law itself."¹ But in our Constitution no clause, not even generically, commemorates them, whereas the Constitution Apostolicae Sedis contains the most ample revocations of them. Nor does the end of our law demand this severity, so long as the matter concerns certain secondary mitigations which had prevailed even in those places where the laws of the Index undoubtedly were in force, and which can be composed with general obedience to our Constitution. We judge that these, if they have been legitimately prescribed, can still be retained. In explaining articles 7 and 41, examples of mitigations of this kind will occur. Genicot,² the Archiv fur katholisches Kirchenrecht,³ and several others are with us; nevertheless Wernz is against us,⁴ since he considers only our written Constitution.

What custom can be legitimate

But the custom of plainly setting aside those prohibitions which contribute so greatly to protecting faith and morals seems to many not to be capable of being reasonable. So Fessler.⁵ Gopfert denies that this reason is effective,⁶ since this custom tended only to this: that those who would read reprehensible writings without detriment would not commit a sin against ecclesiastical laws, a case which otherwise would be very frequent. And in truth, can the faithful not, by the counsels of a prudent confessor, avoid the excessive danger of delusion, on account of which that custom would seem unreasonable?

Nevertheless, a general exemption from the laws of the Index, even one resting on custom, cannot stand with the manifest intention of the Legislator, by which he commands that "Catholic men throughout the whole world obey these decrees religiously." Yet he prudently knows how to urge the force of his law. Cf. below concerning England.

¹ C. Licet 1, De Constitutionibus, in Sexto. Cf. Reiffenstuel, I, 4; or I, 2, nn. 498, 499; Laymann, Ius canonicum, in book 1, title 2, chapter 1 in Sexto, n. 12.

² Loc. cit., I, n. 455.

³ Vol. 78, p. 187.

⁴ N. 110, note 46.

⁵ Cited by Arndt, op. cit., n. 90, p. 104.

⁶ Op. cit., p. 322.

On the Cessation of Law by Custom.¹²⁶

Preliminary Note. For understanding more clearly the force of custom, we shall treat not only of abrogating custom, or custom causing the cessation of law, but also of obligating custom, or custom causing a new law. But we do not treat of merely material custom, which consists in the same acts repeated for a long time, for example, of the custom of committing the same sin.

¹²⁶ Since modern civil legislators scarcely recognize the force of derogatory custom, here there is treated especially ecclesiastical customary law (cf. nevertheless Austrian Civil Code § 10; Spanish Civil Code a. 5; Swiss Civil Code a. 1).

272. Notion. Custom, as it is taken here, is a certain right or law introduced by the morals of the people with at least the tacit consent of the legislator; or, as is had in the Decree of Gratian:¹²⁷ "Custom is a certain right established by morals, which is received as law when law is lacking." This definition indeed is excellent, if it is rightly understood. For law can be lacking as to clarity, and then custom supplies according to law; or as to universality or extension, and then custom supplies beyond law; or finally as to utility, and then custom supplies against law.¹²⁸

¹²⁷ c. 5, D. I.

¹²⁸ Cf. Reiffenstuel, Ius can. l. 1, tit. 4, n. 6.

273. Note. Sometimes custom against law is confused with prescription against law, but not rightly. For good faith is required for legitimate prescription; but good faith is not always required for the value of custom. Conversely, for legitimate custom some consent of the legislator is required, as will be said below; on the contrary, for legitimate prescription no consent is required from him against whom prescription is made. There are also other differences between custom and prescription.¹²⁹

¹²⁹ Ibid. n. 235 sqq.

274. Divisions. Custom can be distinguished on the part of 1. end, 2. extension, 3. cause or mode, 4. duration.

1. On the part of the end, custom according to, beyond, and against law is distinguished. Custom according to law (consuetudo inhaesiva, or declarative custom) confirms and rightly explains an existing law. Concerning this, and concerning custom beyond law, that well-known adage holds, which is taken from Roman Law:¹³⁰ "For custom is the best interpreter of laws." Hence this custom is also called usual interpretation of law. - Custom beyond law is that which, in cases not expressly contained in the law, constitutes a new law conformable to the spirit of the existing law. By such custom there seems to have been first introduced the obligation of privately reciting the Divine Office incumbent upon individual clerics in major orders and religious of either sex solemnly professed. To this custom above all is applied the Isidorian definition brought forward above: a certain right which is received as law when law is lacking. - Custom against law is that which either never receives by use a law that has been made, or removes by contrary morals a law already received, and by long-standing use abrogates it or at least derogates from it. By this custom the Tridentine law concerning the annual convocation of a diocesan synod seems to have been abrogated.

2. By reason of extension, there is distinguished most general, general, special, and most special custom. A most general or universal custom is that which has been received in the universal Church. A general custom is called that which flourishes in a whole certain province. A special custom is that which flourishes in some city. A most special custom is that which is observed by some private persons or by some community which does not constitute a perfect society. This most special custom can never have the force of true law,¹³¹ but after the likeness of some indult it perhaps confers certain subjective rights.

3. By reason of the cause or mode in which it was introduced, judicial and extrajudicial custom are distinguished. Judicial custom, which is also called forensic use, is that "which has obtained in judgment through several conformable sentences pronounced concerning the same kind of causes, i.e., when at least twice judgment has been given in like manner concerning similar causes in a contentious trial within ten years."¹³² This custom indeed, if it is referred to the form of proceeding in tribunals and other dicasteries, is called the "style of the Curia"; but if it concerns the very matter of judicial sentences, it is called "the authority of things similarly judged" or jurisprudence. - Extrajudicial custom is that which is introduced by the morals of the Christian people.

4. By reason of duration, custom is usually distinguished as ordinary (or long), centenary, and immemorial. The first requires an existence of at least 40 years; the second supposes a duration of 100 years; the third is that whose memory of beginning does not exist among living men.

¹³⁰ L. 32 D. I De leg. 3.

¹³¹ Cod. iur. can. c. 26.

¹³² Reiffenstuel, Ius can. l. 1, tit. 4, n. 18.

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.

279. Effects of legitimate custom are three according to St. Thomas,¹⁴⁴ who says: "Custom both has the force of law, and abolishes law, and is the interpreter of laws." Concerning custom insofar as it is the interpreter of laws, nothing remains to be said. For those things hold which above, n. 229, were said concerning usual interpretation. A few things are to be noted concerning custom establishing and abrogating law.

¹⁴⁴ 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.

282. Cessation of custom. Since custom clothed with due conditions is true law, accordingly it ceases in the same mode in which written law can cease, namely through internal causes (through cessation of the matter and total cessation of the end) or through external causes, i.e., through contrary custom (c. 30), and especially through revocation made by the competent superior. Concerning this revocation the following things are noted briefly:

1. Universal custom is abrogated by a later contrary law, although it makes no mention of this custom. Hence, for example, if a bishop makes a law for his whole diocese, a contrary custom existing hitherto in his whole diocese is by that very fact abrogated.

2. A special custom of some place or institute is not abrogated by a supervening contrary general law, unless, however, the legislator expressly wishes to remove also that custom. Wherefore Boniface VIII says:¹⁴⁸ "Although the Roman Pontiff (who is judged to have all rights in the repository of his breast), by establishing a later constitution, is known to revoke an earlier one, even if he makes no mention of it; nevertheless, because he can probably be ignorant of the customs and statutes of special places and singular persons ... he is not understood to derogate in anything from them, provided that they are reasonable, through a constitution newly issued by him (unless this is expressly provided in it)." - Nevertheless a general derogatory clause, for example, "notwithstanding any custom whatsoever," or another similar clause, suffices for removing even special customs. Therefore the Code of Canon Law c. 5 establishes: "Customs presently in force against the statutes of these canons, whether universal or particular, if indeed they are expressly reprobated by the canons themselves, are to be corrected as corruptions of right, although they are immemorial, and they are not to be permitted to revive in the future."

3. An immemorial and centenary custom is not judged revoked unless the ecclesiastical legislator says in the derogatory formula: "notwithstanding any custom whatsoever to the contrary, even immemorial or centenary."¹⁴⁹ Wherefore such customs can be tolerated if Ordinaries, according to the circumstances of places and persons, judge that they cannot prudently be removed.¹⁵⁰ These things indeed hold especially in liturgical matters.

¹⁴⁸ c. 1 in VI, 1, 2.

¹⁴⁹ Cf. St. Alphonsus, Theol. mor. l. 1, n. 109.

¹⁵⁰ Cod. iur. can. c. 5.

283. Scholion. On customary law in the practice of the confessor. For fuller doctrine concerning customary law, see the canonists. In the practice of the confessor, this matter concerning customary law, which is sufficiently intricate, ordinarily does not cause great difficulties. For since custom can obtain in ecclesiastical law alone (rarely in civil law), and no positive law obliges with grave inconvenience, the confessor can always direct himself and his penitents according to the practice of other men of timorous conscience, even if he himself cannot judge whether some custom in a particular case possesses all the conditions required for its legitimacy. For today it is impossible that a legislator should be ignorant for a longer time of the continual practice of timorous men against the law. But if nevertheless he does not protest, he is rightly presumed to approve such practice.

Note beforehand. Here the matter concerns only human law, which can be changed or taken away through custom. Against natural or divine law there cannot be given custom. Yet divine law, as regards the extension of the object, will be able to be more explained through custom: for example, as regards the accusation of external sins.

261. DEFINITION. Custom is either of fact or of right. Custom of fact, or material custom, is frequency of similar acts of some community. Custom of right, or formal custom, concerning which we here treat, is customarily defined: Unwritten right, induced by long-standing morals of the people, with some consent of the legislator.

DIVISION. Custom is either according to, beyond, or against law.

1. Custom according to law is that which is conformable to pre-existing law. Such custom confirms or interprets an established law by long use (cf. n. 170).

2. Custom beyond law is that which is neither prescribed by law nor opposed to law, such as would be, for example, the custom of hearing Mass outside feast days. Such custom can induce a new right where law is lacking.

3. Custom against law is that which is opposed to law, as there are, for example, in divine offices many ceremonies which the Roman decrees do not acknowledge (cf. n. 1638). Such custom introduces a right contrary to law, either by abrogating the law, or by derogating from it, whether as regards the obligation itself, or at least as regards the penalty established by the law. "Custom can also validate a contract invalidated by law, and introduce new impediments invalidating matrimony" (I, 107), and thus we have the impediment of disparity of cult.

With these things premised, it comes to be treated: 1. concerning the conditions of legitimate custom; 2. concerning the prohibition and abrogation of custom.

262. The conditions, in order that custom constitute right, are required partly on the part of the community, partly on the part of the object, partly on the part of the prince.

I. ON THE PART OF THE COMMUNITY. Custom ought to be induced by a community capable of law, or at least by the greater part of it, through public, frequent, free, uninterrupted acts, placed with the intention of constituting right, for a long time.

It is said 1. By a community, not any whatever, but capable of law, that is, which is capable of legislative power for itself, or at least sufficient that true law can be imposed upon it (cf. n. 109, 4.).

2. Or at least by the greater part of it; because obligation is induced by the community, with the prince consenting; but it would not truly be induced by the community if only the lesser part observed the custom. But the greater part already morally represents the community.

3. Through public acts: so that all of the people, or the greater part, can come together in rendering 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.

4. Through frequent acts; for two or three acts do not suffice, as some have less rightly supposed; but it is required that the acts be repeated several times, according to the judgment of prudent men, so that from them the consent of the community can reasonably be gathered (I, 107, 3.).

5. Through free acts, that is, not exercised from force, fear, or error; for the people cannot be presumed to will to establish right through acts which they themselves place either unwillingly or from mere error: nor is the Superior himself, in adjuncts of this kind, judged to consent (H. Ap., II, 79, 80).

6. Through uninterrupted acts, that is, confirmed by continued use; because if the people have placed one single act contrary to the custom, or the prince has punished the acts of the people, prescription against the law would have to be begun again.

7. Through acts placed with the intention of constituting right, that is, with the intention of imposing a law on themselves, if custom beyond right is introduced; or of exempting themselves from law, if custom against right is introduced. The reason is, because only then is the prince presumed to acquiesce in the community. But the mind of obliging oneself under grave matter is gathered from circumstances, namely if the custom is constantly observed, with not light inconvenience, if transgressors are punished, if thus pious men commonly think (cf. n. 1224, 1. and n. 2204, 3.). See St. Alph., III, 1009, dub. 3; IV, 142, where he treats of the obligation of reciting the office which custom has imposed on nuns and religious.

From this you will infer: 1. Custom beyond law is not induced if the people or the greater part of it acts from devotion, gratitude, or a similar motive, for example, by reciting the angelic salutation at the signal of the bell. 2. Nor does desuetude or custom against law prevail if the law is violated only inconsiderately and with the mind of not satisfying it;¹ for some intention of de-obliging oneself is required. Nevertheless, if a law is not observed for a long time in good faith, namely from ignorance of the law, it can prevail by way of prescription. Namely, it suffices that, with the opinion that the law does not exist, the people in good faith do not observe it (H. Ap., II, 80).

8. Placed for a long time, which nevertheless is diverse according as there is had the personal or legal consent of the prince (cf. n. 264). When personal consent stands on the part of the prince, a time so long-lasting is not required for legitimating custom; but when legal consent stands, a decade suffices, so that custom beyond law, or custom against a law not yet received by use, may be induced, indeed even so that any law whatever, whether civil or ecclesiastical, may be abrogated.

This last thing St. Alphonsus (I, 139) teaches as probable with grave authors, against others who require 40 years. Cf. the assertions of the Holy Doctor, III, 849; Benedict XIV, de Synodo, l. 13, c. 5, n. 4.

Note. On the part of the community, good faith is not required of itself,² so that this custom alone becomes legitimate which began without sin. "In the beginning, those introducing custom against law all sin. In progress, those using it when it has already been introduced by their elders do not sin, but they can be punished. But at the end, those using it when it has already prescribed neither sin nor can be punished." St. Alph., I, 107; ed. G., I, p. 89.

263. II. ON THE PART OF THE OBJECT. Custom ought to be good and reasonable.³ The reason is, because it ought to be, like law, an ordinance of reason. Now indeed, custom must be held good and rational if its object is such that it could have been the matter of a just law. Whence it ought neither to be opposed to natural or divine right, that is, to be evil in itself, nor to be reprobated by canonical right as weakening discipline, nor to furnish license or occasion of sinning, nor to stand against common utility. Thus the custom of not accepting decrees of the Holy See, of not receiving its legates, etc., is of no strength (cf. Reiffenst. in l. I Decr., t. IV, n. 34).

Note. 1. It is not required that custom be positively reasonable, but it suffices that it be negatively consonant with reason, so that nothing impedes it from becoming reasonable in the course of time, or from its being reasonable not to urge its observance further, lest delicts be multiplied.

2. In doubt, and when the judgment of prudent men is lacking, it is to be presumed that a custom is reasonable from its possession, that is, from the fact that it has been introduced.

264. III. ON THE PART OF THE LEGISLATOR. For establishing custom, the consent of the legislator is required, whether personal or legal; because the power of establishing or abrogating laws belongs not to the people, but to the legislator (I, 107). Now indeed:

1. Personal consent is that by which the prince through himself immediately approves the custom, either expressly, by giving license that it be induced; or tacitly, when, conscious that a custom is to be introduced, he does not resist it, although he could easily resist. In this case, custom is said to be introduced by way of connivance, and therefore, if by certain indications the tacit consent of the legislator is clear, a long-lasting time is not required.

But observe that custom is not confirmed by silence commanded by prudence, namely if the Pope or prince is silent on account of fear of a greater evil, for example, schism, rebellion. Whence that common saying: "The Church suffers many things which she does not approve" (cf. 164, 2.).

2. Legal consent, always-presumed, is had when the legislator, even if perhaps he is ignorant of the custom, consents to it through the general will expressed in right of approving any reasonable custom whatever as soon as it has been legitimately prescribed. In this case, custom obtains force by way of prescription. See the things said n. 262, 8.

265. IT IS ASKED. What must be done in doubt concerning custom?

Resp. 1. In invincible doubt whether custom beyond law exists or not, whether it has prescribed, whether there was present the mind of obliging oneself, etc., you are held to nothing; because custom of this kind is a new law, which, if it doubtfully exists, does not oblige. If you doubt whether it obliges under grave or under light matter, to fault or to penalty, the more benign part is to be held.

2. In doubt whether desuetude or custom against law exists already prescribed or not, you are held to the law; because this is in possession, and a certain law does not cease through an uncertain contrary cause. Nevertheless, the statement of an outstanding Doctor, even a modern one, asserting that the law has been abrogated, suffices so that we may be de-obliged from the law; for such authority, when it is not weakened by other Doctors, effects moral certitude (cf. n. 63, 3. and 4.). Read our Holy Doctor, I, 107; ed. G., I, p. 89; III, 290; ed. G., I, p. 560, where he proves the words of Mazzotta: in doubt concerning custom, the precept possesses, and dispensation is to be sought; otherwise, if it is probable that custom is present.

Custom can be prohibited for the future, or abrogated in the present, as follows.

266. I. Custom can be PROHIBITED through a clause expressed in some law. And this in two ways:

1. Through a prohibiting clause, for example, through these words: "we do not will any custom against this law to have force." Through a clause of this kind, every custom to be introduced in the future is prohibited, which nevertheless is not therefore declared evil or irrational, and therefore, notwithstanding such prohibition, a future custom can prevail.

St. Alphonsus (I, 108; H. Ap., II, 81) follows this opinion as probable with Suarez (l. 7, c. 19, n. 21), Bonacina (disp. I, de Leg., q. 1, punct. ult. § 3, n. 36), and others. The reason: such a custom can put on all the conditions numbered above. The prohibition annexed to the law indeed demonstrates that the custom to be begun here and now is judged to be irrational, and that the prince wills to consent only with difficulty. But circumstances can change, and the tacit consent of the prince, in most grave circumstances, is not excluded by the clause.

From these things you see what must be thought concerning the axiom: Against Trent there is no prescription. In reality, although Trent contradicts it, the usage of conferring parochial benefices without a concursus, or with it not carried out according to the clearly prescribed form, has prevailed almost everywhere. Cf. De Angelis, Prael. Jur. can., l. I, tit. 4, n. 12. As regards customs against the Rubrics, see the things which will be said n. 1638.

2. Through a reprobating clause, as when the law says: "altogether disapproving that custom, since it is deservedly to be judged not so much custom as corruption." By this formula indeed custom is declared evil and irrational, but from this it does not follow that such a one can never prevail.

Thus St. Alphonsus solves the question (l. c.): "But if it is reprobated as contrary to natural or divine law, then no custom can have force. But if it is reprobated as irrational for the time in which the law is made, then, from a new cause, it can be rendered reasonable and have force" (cf. n. 263).

267. II. A prevailing custom can be ABROGATED through a supervening law. But here a distinction must be made:

1. If the custom is universal, by the fact itself it is abrogated through a subsequent contrary law, without a derogatory clause being necessary; for otherwise the new law would become useless.

2. But if it is particular, or local, it is by no means abrogated through a general law, unless mention is made of the custom, or unless the clause is added: notwithstanding any custom whatever; because the legislator must be judged to be ignorant of the custom.

And hence it is why Bishops, through the laws which they establish, abrogate all and singular particular customs, because they themselves are presumed to have knowledge of all customs which are in force in their dioceses (I, 109).

3. Finally, if the custom is immemorial, or at least if it numbers one hundred years, it is regularly not abolished except through special mention; for such custom is privileged, insofar as for it there is presumed a title than which no better can be alleged in the whole world, as Fagnanus says.

We have said regularly; for even an immemorial custom itself is abolished in certain cases, namely: 1. if a new law declares contrary customs irrational; 2. if the reason of the law operates equally against immemorial customs and against others; 3. if the legislator abrogates all contrary things, one case being excepted; for the exception of one is the exclusion of all the rest (cf. Craisson, Man. Jur. can., n. 142; Bargilliat, Prael. Jur. can., tr. I, c. 5, a. 4).

268. III. Custom can also BE TAKEN AWAY or ABROGATED through another contrary custom. But the new custom ought to be directly contrary to the preceding; namely universal, which takes away a universal; particular, which takes away a particular; and it ought likewise, by repeated acts, in the manner explained above (n. 262), to prescribe (Bouix, de Princip., p. 381).

Note. If some custom is against faith and good morals, one must indeed labor that it be uprooted as soon as possible, since no legitimate prescription can be had in this matter. The same must be said concerning a custom which would be opposed to Christian piety. It belongs to the Superior to strive to take a custom of this kind out of the midst; because, from office, it is incumbent on him to care for the spiritual good of subjects.

But as regards the MODE which must be used in this matter, let obedience be given to the most wise admonition of St. Augustine (Ep. 22, to Bishop Aurelius, n. 5), who, treating of the license of feasts shamefully occupying almost the whole of Africa everywhere, under the empty pretext of honoring the feasts of martyrs, urged the best manner of acting, writing gravely: "Not harshly, as much as I judge, not severely, not in an imperious manner, are those things taken away; more by teaching than by commanding, more by admonishing than by threatening. For thus one must act with a multitude; but severity is to be exercised upon the sins of the few. And if we threaten anything, let it be done with sorrow, by threatening from the Scriptures future vengeance, lest not we ourselves in our power, but God in our speech, be feared."

Cf. the things which Ami du Cl. wisely advises, 1906, p. 42, 361; 1907, p. 249, in relation to customs which are in force among unbelievers; likewise the things which it writes concerning customs of the faithful and the silence of competent authority (1900, p. 1027 ff.).

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.

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).

[Custom is twofold¹ : one of fact, the other of right. Custom of fact is defined by St. Thomas : « Frequent acting freely in the same manner. » Custom of right, which follows from custom of fact, is defined by Isidore, book V Etymol., c. 3, cited chapter 5, dist. 1 : « A certain right instituted by manners [that is, by frequent acts], which is taken for law when law fails. » Here chiefly custom of fact is treated.] ¹ In III Sentent., dist. 23, q. 1, a. 14, quaestiunc. 2.

St. Thomas attributes three things to custom² : first, that it introduce law, namely when it exists apart from law and presupposes none; secondly, that it abrogate a law laid down and received; thirdly, that it interpret it. But custom can obtain these three in a twofold way : 1° by way of connivance, when the superior personally consents tacitly or expressly to the custom, to which no determined time is required; 2° by way of prescription, when the custom has prevailed for a certain time, with consent concurring, if not personal, at least juridical or legal, of the superior, as will be explained below. ² Here q. 97, a. 3, c.

Whether therefore and how custom can obtain these three things, we inquire. Wherefore

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.]

I say 3° : Custom can interpret law¹. ¹ Here q. 97, a. 3, c.

It is plain from law, cap. Cum dilectus, Decretal. lib. I, tit. 4, de consuetudine, etc. L. Si de interpretatione, ff de legibus. In both custom is called « the best interpreter of laws. »

[Interpretation moreover is twofold : one doctrinal, according to the mind and sense of the legislator; the other authentic, which proceeds from a superior and has the force of introducing some sense which is received for new law, although perchance it agree not with the first intention of the legislator. In both ways custom can interpret human law; but in the former way only natural and divine law.]