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 CUSTOM

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CUSTOM

the Hapsburg line and the King of Hungary and Bohe- mia ; another of his missions was to accompany Bona Sforza, the bride of King Sigismund of Poland, to Cracow. His literary activity covered the most va- ried domains. Although his poetical writings are of little importance, and his manuscript "Collectanea raedicin." of no great value, nevertheless he attained a high reputation as a collector and, to some degree, as an editor of ancient and medieval manuscripts. Among other publications, he edited in 1511 L. Florus, in 1515 the " Libellus de lapidibus"of Marboduus, and the medieval chronicler Otto of Freising. Important as a contribution to the study of ancient history is the publication which first appeared, after his death in 155.3, namely, the "Fasti consulares", with which were united the "Chronicle" of Cassiodorus and the "Breviarium" of Sextus Rufus. Another valuable work of Cuspinian is the " History of the Roman Em- perors", prepared during the years 1512-22 (in Latin, 1540, and in German, 1541). For a long time, espe- cially after the battle of Moh^cs, he busied himself with the Turkish question and printed both political and historical writings on the subject, the most im- portant of which is his " De Turcarum origine, reli- gione et tyrannide". His best work is "Austria, sive Commentarius de rebus Austriae" etc., edited by Brusch in 1553 with critical notes. A kind of diary (1502-27), which throws much light on his political activity, was published in " Fontes reruni austriaca- rum" (1885), I, 1 sqq. A life of Cuspinian, not always reliable, is found in the complete edition of his works by Gerbelius (Commentationes Cusp., Strasburg, 1540) ; a more complete edition of his works appeared at Frankfort in 1601.

Allff. deutscJie Biogr., IV. 662 sqq.; Haselbach, Cuspinian als Staaismann und Getehrter (Vienna. 1867); Aschbach, Gesch. der Universilat Wien (1877), II. 284-309; Badch, Die Recep- tion des Hutnanismus in Wien (1903). 48 sqq.

Joseph S.\uer.

Custom (in Canon Law) is an unwritten law in- troduced by the continuous acts of the faithful with the consent of the legitimate legislator. Custom may be considered as a fact and as a law. As a fact, it is simply the frequent and free repetition of acts con- cerning the same thing; as a law, it is the result and consequence of that fact. Hence its name, which is derived from consueso) or consuefacio and denotes the frequency of the action. (Cap. Consuetudo v, Dist. i.)

I. Division. — (a) Considered according to extent, a custom is universal, if received by the whole Church ; or general (though under another aspect, particular), if obser\'ed in an entire country or province; or spe- cial, if it obtains among smaller but perfect societies; or most special (specialissima) if among private in- dividuals and imperfect societies. It is ob\'ious that the last-named cannot elevate a custom into a legiti- mate law. (b) Considered according to duration, custom is prescriptive or non-prescriptive. The fonner is subdivided, according to the amount of time requisite for a custom of fact to become a custom of law, into ordinary (i. e. ten or forty years) and im- memorial, (c) Considered according to method of in- troduction, a custom is judicial or extrajudicial. The first is that derived from forensic usage or precedent. This is of great importance in ecclesiastical circles, as the same prelates are generally both legislators and judges, i. c. the pope and bishops. Extrajudicial custom is introduced by the peoi)le, but its sanction becomes the more easy the larger the number of learned or jironiinent men who embrace it. (d) Con- sidered in its relation to law, a custom is according to law {juxta U-yem) when it interprets or confirms an ex- isting statute; or beside the law (pnrter legem) when no written legislation on the .subject exists; or con- tary to law (contra legem) when it tierogates from or abrogates a statute already in force.

II. CoNDiTioN.s. — The true efficient cause of an ec-

clesiastical custom, in as far as it constitutes law, is solely the consent of the competent legislating author- ity. All church laws imply spiritual jurisdiction, which resides in the hierarchy alone, and, consequently, the faithful have no legislative power, either by Di\Tne right or canonical statute. Therefore, the express or tacit consent of the church authority is necessary to give a custom the force of an ecclesiastical law. This eon- sent is denominated legal when, by general statute and antecedently, reasonable customs receive appro- bation. Ecclesiastical custom differs, therefore, radi- cally from civil custom. For, though both arise from a certain conspiration and accord between the people and the lawgivers, yet in the Church the entire juridi- cal force of the custom is to be obtamed from the con- sent of the hierarchy while in the civil state, the peo- ple themselves are one of the real sources of the legal force of custom. Custom, as a fact, must proceed from the community, or at least from the action of the greater number constituting the community. These actions mast be free, uniform, frequent, and public, and performed with the intention of imposing an obli- gation. The iLsage, of which there is question, must also be of a reasonable nature. Custom either intro- duces a new law or abrogates an old one. But a law, by its very concept, is an ordination of reason, and so no law can be constituted by an mireasonable custom. Moreover, as an existing statute cannot be revoked except for just cause, it follows that the custom which is to abrogate the old law must be reasonable, for otherwise the requisite justice would be wanting. A custom, considered as a fact, is unreasonable when it is contrarj' to Divine law, positive or natural; or when it is prohibited by proper ecclesiastical author- ity ; or when it is the occasion of sin and opposed to the common good.

A custom must also have a legitimate prescription. Such prescription is obtained by a continuance of the act in question during a certain length of time. No canonical statute has positively defined what this length of time is, and so its determination is left to the wisdom of canonists. Authors generally hold that for the legalizing of a custom in accordance with or beside the law (Juxta or pnrter legem) a space of ten years is sufficient; while for a custom contrary (contra) to law many demand a lapse of forty years. The reason given for the necessity of so long a space as forty years Ls that the community will only slowly persuade itself of the opportuneness of abrogating the old and em- bracing the new law. The opinion, however, which holds that ten years suffices to establish a custom even contrary to the law may be safely followed. It is to be noted, however, that in practice the Roman Con- gregations scarcely tolerate or permit any custom, even an immemorial one, contrary to the sacred canons. (Cf. Gasparri, De Sacr. Ordin., n. 53, 69 sq.) In the introduction of a law by prescription, it is as- sumed that the custom was introduced in good faith, or at least through ignorance of the opposite law. If, however, a custom be introduced through connivance {rid connivcntia;), good faith is not required, for, as a matter of fact, bad faith must, at least in the begin- ning, be presupposed. As, however, when there is question of connivance, the proper legislator must know of the formation of the custom and yet does not oppose it when he could easily do so, the contrary law is then supposed to be abrogated directly by the tacit revocation of the legislator. A custom which is con- trary to good morals or to the natural or Divine posi- tive law is always to be rejected as an abuse, and it can never be legalized.

III. Force op Custom. — The effects of a custom vary with the nature of the act which has causetl its introduction, i. e. according as the act is in accord with (juxta), or beside (prceter), or contrarj' (contra) to. the written law. (a) The first (jiixta legem) does not constitute a new law in the strict sen.se of the word;