Page:Catholic Encyclopedia, volume 4.djvu/655

 CUSTOS

GUSTOS

8 effect is rather to confirm and strengthen an aho.idy tisting statute or to interpret it. Hence the axiom F jurists: Custom is the best interpreter of laws, ustoin, indeed, considered as a fact, is a witness to le true sense of a law and to the intention of the legi.s- itor. If, then, it bring about that a determinate !nse be obligatorily attached to an indeterminate gal phrase, it takes rank as an authentic interpreta- on of the law and as such acquires true binding-force. lerm (Jus Decretalium, n. 191) refers to this same rinciple as explaining why the oft-recurring |)hrase in le Church, ajjproved by the Holy See", indicates a ue norm and an obligatorj' law. (b) The second )ecies of custom (prwter legem) has the force of a new ,w, binding iipon the entire community both in the iternal and external forum. Unless a special excep- on can be proved, the force of such a custom extends ) the introduction of prohibitive, permissive, and receptive statutes, as well as to penal and nullifying lactments. (c) Thirdly, a custom contrarj' (contra) I law has the effect of abrogating, entirely or in part, 1 already existing ordinance, for it has the force of a ?w and later law. As regards penal ecclesiastical gislation, such a custom may directly remove an ^ligation in conscience, while the duty of submission 1 the punishment for transgressing the old precept ay remain, provided the punishment in question be 3t a censure nor so severe a chastisement as neces- .rily presupposes a grave fault. On the other hand, lis species of custom may also remove the punish- ent attached to a particular law, while the law itself mains obligatorj' as to its obser\'ance. Immemorial istom, provided it be shown that circumstances have i changed as to make the custom reasonable, has )wer to abrogate or change any human law, even lOUgh a clause had been originally added to it for- dding any custom to the contrary. To immemorial istom is also attached the unusual force of inducing a ■esumption of the existence of an Apostolic privilege, ■ovided the said privilege be not reckoned among )uses, and the holder of the presumed privilege be a
 * clesiastical documents, "the existing discipline of
 * rson legally capable of accpiiring the thing in ques-

5n without first obtaining a special and express postolic permi.ssion for it (cf. Wemz, op. cit., who IS been followed particularly in this paragraph). ?rraris notes that no immemorial custom, if it be not mfirmed by Apostolic privilege, express or presump- \re, can have any force for the abrogation of ecclesi- tical liberties or immunities, inasmuch as both canon id civil law declare such custom to be unreasonable r its very nature. In general, it may be said that a did custom, in both the constitution and the abroga- )n of laws, produces the same effects as a legislative t.

IV. Concerning Tridentine Decrees. — A special lestion has been raised by some canonists as to bether the laws of the Council of Trent may be langed or abrogated by custom, even if immemorial,

whether all such contrary customs should not be jected as abuses. Some of these writers restrict eir denial of the value of contrary customs to ordi- iry, some also to immemorial ones (cf. Lucidi, De Vis. ic. Lim., I, ch. iii, n. 111). It is unquestionably a meral principle in canon law, that custom can change le disciplinarj' statutes even of oecumenical councils, lie main reiuson for rejecting this principle in favour

the Tridentine enactments in particular is that any intrary custom would certainly be unreasonable and lerefore unjustifiable. It is by no means evident, )wever, that all such contrary customs must neces- .rily be unreasonable, as is plain from the fact that ime authors allow and others deny the value of im- emorial customs in the premises, even when they rree in reprobating the force of ordinary- customs. B a matter of fact, there is no decree of the Sacred sngregation of the Council which declares, abso- IV.— 37

lutely and generally, that all otistoms contrary to the laws of the Council of Trent are invalid. Moreover, the Tribunal of the Rota has allowed the force of im- memorial customs coidrary to the flisciplinary decrees of Trent, and the Sacred Congregation of the Council has at least tolerated them in secondaiy matters. A salient instance of the Roman official view is the state- ment of the Holy Office (11 March, 1868) that the Tridentine decree on clandestine marriages, even after promulgation, was abrogated in some regions by con- trary- custom (Collect. S. C. de Prop. Fid., n. 1408). The confirmation of the Council of Trent by Pope Pius IV (2(1 Jan., 1564; 17 Feb., 1565) aboli-shes, it is true, all contrary existing customs, but the papal let- ters contain nothing to invalidate future customs. Owing to the comparatively recent date of the Council of Trent and the urgency of the Holy See that its de- crees be observed, it is not easy for a contrarj' custom to arise, but whenever the conditions of a legitimate custom are fulfilled, there is no reason why the Tri- dentine decrees should be more immune than those of any other oecumenical council (cfr. Laurentius, op. cit., below, n. 307).

V. Cess.^^tion of Custom.s. — Any custom is to be rejected whose existence as such cannot be proved legally. A custom is a matter of fact, and therefore its existence must be tested in the same way as the existence of other alleged facts is tested. In this par- ticular, the decrees of synods, the testimony of the diocesan ordinaiy and of other persons worthy of credence are of great value. Proofs are considered the stronger the more closely they approximate public and official monuments. If there be a question of proving an immemorial custom, the witnesses must be able to affirm that they themselves have been cogniz- ant of the matter at issue for a space of at least forty years, that they have heard it referred to by their progenitors as something always observed, and that neither they nor their fathers have ever been aware of any fact to the contrarj-. If the fact of the existence of an alleged custom is not sufficiently proved, it is to be rejected as constituting a source of law. Customs may be revoked by a competent ecclesiastical legisla- tor, in the same way and for the same reasons as other ordinances are abrogated. A later general law con- trary to a general custom will nullify the latter, but a particular custom will not be abrogated by a general law, unless a clause to that effect be inserted. Even such a nullifying clause will not be sufficient for the abrogation of immemorial customs. The latter must be mentioned explicitly, for they are held not to be in- cluded in any general legal phrase, however sweeping its terms may be. Customs may likewise be abro- gated by contrary customs, or they may lose their legal force by the mere fact that they fall into desue- tude. Finally, an authentic declaration that a cus- tom is absolutely contrarj' to good morals (rumpens nervum disripHna:) and detrimental to the interests of the hierarchy or of the faitliful deprives it of its sup- posed legal value.

Bauduin. De Con-iueludine in Jure Canon. (Louvain. 1888); Werne, Jus Decretalium (Rome, 1898), I; L\uRE.VTins, /n.i(i- tuliones Juris Eccl. (Freiburg, 1903); Ferr-iris. Bibliolhecc Canon. (Rome, 1886), II.

William H. W. Fanning.

Gustos (1), an imder-sacristan. (See Sacristan.) 12) .\ superior or an official in the Franciscan Order. The word has various acceptations in ancient as well as in modern Franciscan legislation. Nor do the three great existing branches of the order — the Friars Minor, Conventuals, and Capuchins — attach the same meaning to the term at the present day. Saint Fran- cis sometimes applies the w^ord to any superior in the order — guardians, provincials, and even to the general (see Rule, IV and VIII, and Te.stament). Som("- times he restricts it to officials presiding over a certain number of convents in the larger provinces of the