15. Patriarchs and metropolitans cannot make laws for their province; they must assemble the bishops in council, and then the council can make canons.

C.-Custom.

16. Properly speaking, customs do not form a part of the canon law, but their existence and force are recognized by it so far that customary law forms an authoritative commentary upon canon law properly so called, and sometimes repeals it. Authoritative customs are of three kinds those beyond the written law, those agreeing with it, and those opposed to it; their force is derived from some consent of the superior, whether tacit or expressed by word or act. (1) Customs beyond the law are those which have been used by the faithful for a long time in cases for which no written law is provided; they have all the force of law if they seem reasonable. (2) Customs agreeing with the law are allowed to interpret a doubtful or obscure law. (3) Customs opposed to the written law make it obsolete, and abrogate it either wholly or in part. Such customs cannot, of course, prevail against Divine or natural right; but they may, if reasonable and of due prescription, repeal every positive human law. They are reasonable, if useful to the people while giving no licence to sin nor relaxing the discipline of the Church, and legitimate prescription is gained by the consent of the superior or by lapse of time (ten years or more); but the prescription is interrupted, and therefore destroyed, if the superior, within the ten years, recalls attention to the law and protests against the contrary custom which he perceives to be gaining ground. In the case of a penal law, custom

may take away the punishment assigned, while the obligation of obedience to the precept remains, i.e. when the thing ordered is founded on Divine or natural right; for instance, the sons of priests were formerly slaves by law as a punishment for their fathers' incontinence, but now custom has abolished this punishment. This is true of all penal laws, whether the penalty was ipso facto or not, and the supplementary proposition is sometimes maintained, viz. that custom may abolish the legal criminality of an act, while the penalty remains in force; but this seems contrary to natural justice, and therefore the ecclesiastical judge cannot act upon it.*. These principles seem to show not only that the "Ornaments Rubric," so far as it commands the eucharistic vestments, has ceased to be of any obligation, but that it is illegal to obey it: for (1) the duty of wearing these vestments is of human law only; (2) the prescription of the custom is sufficient, even granting that the law was once obeyed; (3) custom has prescribed the use of a surplice, with which the others are incompatible. Customs may at any time be abrogated by law, but such a law must state plainly what customs it forbids, and in what places it forbids them.

D.-Rules of Law.

17. A very important means of making law is by inter*On this point see Gousset, Principes du Dr. Can., p. 333; and Reiffenstuel, De Consuet., § 6, q. 3, n. 155, who refers to Suarez, De Legibus, lib. vii. c. 19, nn. 3, 12. Bishop Forbes, in his Explanation of the Thirty-nine Articles, p. 670, gives a summary of the

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matter. As the customs of a people show its genius, so the customs of the Church, the people of God, are the most sacred of all; Tertull. De Cor., 4.

preting existing law. Where custom does not do this, it is the work of judges and jurisconsults. There are three principal Rules of Interpretation:

(1) The meaning of the words is to be adhered to as far as possible.

(2) The mind rather than the words of the legislator must be followed if the words by themselves seem without meaning.

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(3) Odia restringi, favores decet ampliari. "Odious" laws are such as levy new taxes, make void acts otherwise good, decree penalties, or contravene the common law of the Church; 'favours are privileges. Some acts are both odious and favourable; thus the power of giving a dispensation is favourable to the person who receives the dispensation, and yet the gift itself is odious because made against the common law. The meaning of the rule is, that when the intention of the legislator is not otherwise clear, odious laws are to be restricted as much as possible, and favourable ones extended to as many persons and cases as possible. For example, the canon orders that any one who strikes a cleric is to be excommunicated. As this is favourable to the clerics, it is extended to include even the novices of a religious order; but as it is odious to those who assault them, violent words and threats and menacing actions are not to be considered as "striking."

18. When the legislator wishes to relax the law in certain cases, or as regards certain persons, he publishes a dispensation, in which he states the limits of the relaxation

permitted; outside these limits, the law remains in full force. If the dispensation be permanent as regards any person, dignity, or thing, it is called a privilege; for instance, it is a privilege for a priest to have a private chapel in his house. Privileges may be acquired not only by the express concession of the legislator for good cause shown, but also by grant from any person empowered to grant them, and even by custom after due lapse of time.*

19. Dispensations, properly so called, require a certain act of the superior, explicit or implicit, but no special form. In general, some proportionate cause is required for the legality of a dispensation, and some just cause for its validity. Such causes are: (1) urgent need, i.e. when greater evils are feared if the dispensation is refused; (2) the public good of the Church, or (3) some private good, which it is hoped will turn to the general welfare. These reasons must be true at the time when the dispensation is granted; otherwise it is invalid, because the presumption is that the will of the dispenser was unduly influenced. Nevertheless, a false reason urged in good faith may secure a valid dispensation. One of the

simplest forms of dispensation is a licence for marriage without publication of banns.

20. The proper dispenser is the legislator or ruler; but he may delegate this power to other persons, with whatever

* There is an ambiguity in the use of the term "personal privilege." It may mean personal as opposed to local, official, or hereditary privilege (e.g. knighthood, as opposed to baronetage); or it may mean relating to certain persons, as opposed to men in general (in personam, as opposed to in rem).-Holland, Jurisprudence, pp. 107, 108.

amplitude he pleases.* He may give dispensations in all matters merely ecclesiastical, such as publication of banns; but it is doubtful whether the bishop of a single diocese has power to dispense with a general law of the Church. In cases of urgency, the bishop must decide for himself whether a dispensation would be for the spiritual good of the person seeking it, or for the good of the whole Church; in cases of doubt as to the meaning of a law or as to the commission of an offence, the bishop may give a dispensation in order to relieve the conscience of the doubter. A parish priest, having no legislative power, cannot give dispensations except in customary cases (when they are called "permissions "); and even then the force of them may be supposed to proceed from the bishop whose representative the priest is.

21. As to the person who receives the dispensation, it is evident that, in general, he must be a subject of the dispenser, and that he may use a dispensation granted by his proper superior in any diocese where he may be staying. If it is asked for him by others, it does not avail unless he knows of it. It is doubtful how far a ruler may dispense himself, though of course he shares in the benefit of a general dispensation.

22. Dispensations cease in two ways: (1) when the reason for granting them ceases; (2) when the superior recalls them, which he may do if he finds that they have been abused or left unused.

23. In cases where there is no contrary custom privilege or dispensation, a law has three effects: (1) it binds *Hence arise "reserved cases."