Selections from Three Works. Francisco Suárez
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of law established through prescriptive custom, 643–646; Second inference: if custom does not prevail in virtue of prescription, personal consent of prince is necessary, 646–647; Kind of consent necessary, 647; tacit consent sufficient, 648.
XIV. What Sort of Custom Has the Effect of Establishing Unwritten Law?
Four effects of custom: establishment, interpretation, confirmation, and abrogation of law, 648; Legitimate custom may establish unwritten law where no written or traditional law exists, 649–650; Such custom may contain all the elements requisite for true law, 650–651; Authority requisite for validity of a custom, 651–652; Will (i.e. intention) requisite for the establishment of custom, 652; Importance of this element, 652–653;
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Character of will required to establish custom, 653–654; Evidence of this will, 654.
XV. How Long Must Custom Endure in Order to Suffice for the Establishment of Law?
Concerning time required for the establishment of a custom, 655; In the case of prescriptive custom ten years required for it to introduce law, 656; Whether a longer period is required if the prince against whom such prescription runs is absent, 657–660; Length of time necessary in the case of custom not validated by prescription, 660; Difficulty of fixing a definite period for such custom, 661; Effect of judicial decisions and prudent opinion, 662–663; Intention of those observing custom an important factor in this connexion, 663–665; Various criteria for determining whether custom is observed for the purpose of introducing consuetudinary law, 665–666.
XVI. Concerning the Causes and Effects of Unwritten Law Introduced through Custom
Written and consuetudinary law similar except in form and promulgation, 667–668; Binding effect of custom, 668; Custom may establish penal law, 668–669; Custom may invalidate act contrary thereto, 669–670; Comparison of binding effects of law and of custom, 670–673; The binding effect of each, according to Suárez, is fundamentally the same, 673–674; Whether clerics are bound by custom, 674–677; Whether the obligation of custom may be extended from one case to another similar one, 677–679.
XVII. Can Custom Interpret Law?
Only custom in accordance with a law may interpret that law, 679; How it may interpret law as a sign or witness thereof, 679–680; As one of the causes for the introduction and settling of such interpretation, 680; Interpretation by prescriptive custom and concordant judicial decisions, 681; Force of custom in interpretation of human law, 681–682; Of divine and natural law, 682; Of custom, 683.
XVIII. Can Custom Abrogate Human Law?
Doubts concerning power of custom to abrogate civil law, 683–684; Human law (canonical and civil) may be abrogated by custom, 684; Source of the power to abrogate civil laws by custom, 685; Power of repudiation of law by custom lies in those under obedience to that
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law, 685; Will of both people and prince required for establishment of such custom, 686–687; Universal custom necessary to abrogate general law for the whole Church, 687; Privative custom (one arising from repeated omission of an act) sufficient to effect such abrogation, 688–689; Consent of prince to abrogation, 689; Nature of the reason in support of custom abrogating law, 689; Prescriptive period for custom abrogating law: ten years in case of civil law, 691; Forty years in the case of canon law, 692–694; Not essential that prince be aware of prescriptive custom abrogating law, 694–695; Non-prescriptive custom and the abrogation of law, 695–697; Time required for abrogation of law through custom of which prince has no knowledge, 698; Judgment of prudent man the criterion, 698; Reply to argument based on passage in Decretals, 699–701; Suárez meets difficulties raised at the beginning of the chapter: as to whether a municipal statute can abrogate a general law, 701–702; Whether a custom can prevail in opposition to will of prince, 702; Whether a reasonable custom contrary to law may be established by morally good actions, 703–704; How a custom arising out of actions legally forbidden may derogate from law, 704–705.
XIX. Does the Abrogation of a Law through Custom Admit of Any Exception or Extension?
Whether custom may abrogate penal laws imposing penalty by fact of transgression, 706–707; Whether custom may derogate from the penalty attached to a law, leaving that law still binding in conscience, 707–710; The effect of unreasonable custom with respect to such penalties, 711–714; Whether custom may relax the direct obligation of law without affecting the penalty attached thereto, 714–717; Suárez rejects the theory that laws invalidating certain acts cannot be abrogated by custom, 717–720; How a disqualified person may become legally qualified through custom, 720–721; Revocation of a custom by law does not prevent derogation from that law by a subsequent custom, 722; Effect of law forbidding future customs contrary to it, 722–727; How custom reprobated by law can prevail against such law, 727–729; Whether a law of the Church relating to the Sacraments can be abrogated by prescriptive custom, 729–731; Suárez finds no exceptions to the general rule that custom may abrogate law, 731; A custom abrogating law is not to be extended, 731; So held by Panormitanus, Jason, Innocent, and Rochus, 731; Whether custom may not only derogate from law but introduce new contrary law, 732; Suárez holds that both of these results may be brought about at the same time by the same custom, 733–734.
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XX. In What Ways Custom May Be Changed
Modes of changing custom, 734–735; Revocation of custom, 735; May take place by passage of subsequent law in opposition thereto, 736–738; Requirements of such a law if it possesses no revoking clause, 738; General custom revoked by general law, 738–740; Universal law framed for whole Church revokes particular customs of dioceses, &c., only if it has clause to that effect, 740; To what customs this rule applies, 741–745; Whether a particular law enacted for a locality by a ruler of universal authority derogates from a particular custom in opposition thereto, 745–747; Clause added to general law to abrogate custom, 747; To abrogate immemorial custom, 747–749; When an ancient custom is abrogated by a subsequent one, 749–750; Determination of the validity of such subsequent custom, 750–752.
A DEFENCE OF THE CATHOLIC AND APOSTOLIC FAITH
—In Refutation of the Errors of the Anglican Sect with a Reply to the Apologie for the Oath of Allegiance and to the Admonitory Preface of His Most Serene Majesty James, King of England
Dedication
[Of this treatise, only the following Chapters are included in these Selections: Book III, chaps. V and xxiii; Book VI, chap. IV.]
BOOK III: CONCERNING THE SUPREMACY AND POWER OF THE POPE OVER TEMPORAL KINGS
V. Do Christian Kings Possess Supreme Power in Civil, or Temporal Affairs; and [If So] by What Right?
Nature of the question regarding supreme temporal power explained, 761; Two forms of subjection, direct and indirect, 762–763; Whether the temporal power of Christian kings is supreme, 763; The opinion that the Pope is supreme in both temporal and spiritual domains, 764–766; Suárez’s assertion that Christian kings possess supreme civil power within
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their own order, 766; Denial of the Emperor’s temporal supremacy over the Church, 766–767; The doctrine that the Pope does not wield supreme temporal jurisdiction, 768; This doctrine supported by authority of Popes, 768–770; By reason, 770–771; It is proved that the Pope has never acquired such jurisdiction through election or other human title, 771; Further proof in connexion with canon and divine law, 772–776; Whether the Pope can be a temporal as well as a spiritual ruler, 776–777; Suárez rejects the argument that the Pope possesses supreme temporal jurisdiction, though he exercises it only indirectly, 777–780.
XXIII. The Pope May Use Coercive Power against Kings, Even to the Point of Deposing Them from Their Thrones, If There Be a Valid Cause
Coercive