immemorial custom and the missale romanum of 1962 (usus antiquior

© W. S. Maney & Son Ltd 2012 DOI 10.1179/175789412X13184935045823

usus antiquior, Vol. 3 No. 1, January, 2012, 15–35

Immemorial Custom and the Missale Romanum of 1962 (usus antiquior)Anselm J Gribbin O PraemAbbey of Our Lady of Tongerlo, Belgium

This article discusses ‘immemorial custom’ and the celebration of the Missale Romanum (1962), now known as the usus antiquior of the Roman Rite. The central aspect of this relates to an immemorial custom de iure that becomes a true law, and the question of whether it retains the bond of custom, to which the bond of law is added (an opinion held by Suarez). On this pretext, before the appearance of the Codex Iuris Canonici of 1983 and Summorum Pontificum of Pope Benedict XVI (2007), some proponents of the Missale Romanum (1962) argued that it may be used by priests, despite the appearance of a new missal and Pope Paul VI’s Apostolic Constitution Missale Romanum (1969), because the latter left the immemorial custom of celebrating the previous liturgy intact. This opinion is examined in the light of Count Neri Capponi’s study, written in the 1970s, wherein he defends it. It is shown, in the light of the Codex Iuris Canonici of 1917 and the opinions of notable canonists of customary law, particularly Gommarus Michiels and Alphonse Van Hove, that this viewpoint cannot be sustained, and should not be proposed today.

keywords Alphonse Van Hove, Codex Iuris Canonici (1917/1983), Count Neri Capponi, Gommarus Michiels, immemorial custom, post-Vatican II liturgical reform, Missale Romanum, usus antiquior

The Second Vatican Council (Vatican II), in its constitution Sacrosanctum Concilium

(4 December 1963), called for the careful revision of the liturgical books of the Roman

Rite ‘as soon as possible’.1 It was only seven years later that a new Missale Romanum

appeared (1970), accompanied by Pope Paul VI’s Apostolic Constitution Missale

Romanum (1969).2 Undoubtedly this missal, now in its third edition (2002), brought

1 I am most grateful to Rt. Rev. Jos Wouters, O. Praem., S.T.D., J.C.L., and Rev. Leo Van Dyck, O. Praem.,

J.C.D., Palaeographus et Archivarius laureatus in Schola Vaticana, for examining the original essay which

formed the basis of this article, and for their comments and suggestions.2 The Second Vatican Council, Constitution Sacrosanctum Concilium (4 December 1963), Acta Apostolicae Sedis

(hereafter AAS), 56 (1964), pp. 97–134 (p. 107, no. 25). ‘Libri liturgici quam primum recognoscantur’; Pope

Paul VI, Apostolic Constitution Missale Romanum (3 April 1969), AAS, 61 (1969), pp. 217–22. Changes to the

Ordo Missae and rubrics began as early as 1965: Ephemerides Liturgicae, 79 (1965), pp. 117–43.

16 ANSELM J GRIBBIN

about a significant change in the daily liturgical practices of the Church, more so than

all the other liturgical revisions carried out in the 1960s and 1970s. It received mixed

reactions.3 Against this background, there arose discussion concerning the legal and

canonical status of the previous 1962 Missale Romanum. This is regarded as the

last major revision of the so-called ‘Pian’ missal, which was promulgated after the

Council of Trent by Pope St Pius V in the bull Quo Primum (1570).4 Some canonists

and other individuals were of the opinion — and possibly still are — that this missal

and Quo Primum were ‘abrogated’ by Pope Paul VI’s Apostolic Constitution Missale

Romanum; in other words, that the Pian missal was entirely revoked and replaced by

the missal of 1970. Others have suggested that it was ‘derogated’ — partially revoked

and still legal, but that its ‘exclusive’ status5 was altered — while others proposed

that it was ‘obrogated’, that is, was revoked by the issuing of a decree contrary to the

former one.6 The question of ‘abrogation’ was finally settled with Pope Benedict

XVI’s motu proprio Summorum Pontificum (2007), which states that the Missale

Romanum (1962) was not abrogated, and gave it a new legal status in the Church as

the usus antiquior or ‘Extraordinary Form of the Roman Rite’.7

The purpose of this article is not primarily to debate the pros and cons of the

liturgical changes in the Church since Vatican II, nor to study in depth the status of

the Missale Romanum (1962) in respect of the thesis of abrogation, which has been

settled. Here we shall examine one particular aspect of the legal discussion, namely

‘immemorial custom’ (consuetudo) alone as justification for the continued use of

the Missale Romanum (1962)/usus antiquior, after the Apostolic Constitution of

Pope Paul VI.8 This discussion mainly took place before the promulgation of the new

Code of Canon Law (Codex Iuris Canonici (CIC), 1983), Summorum Pontificum,

and severa l papal and curial documents from the 1980s.9 Therefore, before one can

3 Cf. Thomas M. Kocik, The Reform of the Reform? A Liturgical Debate: Reform or Return (San Francisco:

Ignatius Press, 2003).4 Pope St Pius V, Bull Quo Primum (14 July 1570), in Missale Romanum, editio typica (Vatican City: Typis

Polyglottis Vaticanis, 1962), pp. v–vi; J. B. O’Connell, The Celebration of Mass: A Study of the Rubrics of the

Roman Missal, 4th edn (Milwaukee: The Bruce Publishing Company, 1964), pp. 10–13.5 We should not forget those religious orders with their own ‘use’ of the Roman Rite.6 Michael Davies, The Legal Status of the Tridentine Mass (Texas: Angelus Press, 1990); Udalric Beste,

Introductio in Codicem, 5th edn (Naples: M. D’Auria, 1961), pp. 90–91; Codex Iuris Canonici (hereafter CIC),

1917, c. 22 (CIC, 1983, c. 20).7 Pope Benedict XVI, Apostolic letter given ‘motu proprio’ De Usu Extraordinaria Antiquae Formae Ritus

Romani, Summorum Pontificum (7 July 2007), AAS, 99 (2007), pp. 777–81; Pope Benedict XVI, Letter to the

Bishops on the Occasion of the Publication of the Apostolic Letter ‘Motu Proprio Data’ (7 July 2007), in Pope

Benedict XVI, Summorum Pontificum (London: Catholic Truth Society, 2007), p. 21; Nicola Bux and Salvatore

Vitiello, The Motu Proprio of Benedict XVI Summorum Pontificum cura, Fides Service Dossier, 1 August 2007

(Agenzia Fides: Agenzia della Congregazione per l’Evangelizzazione dei Popoli) <http://www.fides.org/eng/

documents/dossier_motu_proprio_eng.doc> [accessed 18 August 2011]; Gero P. Weishaupt, Päpstliche Weichen-

stellungen: Das Motu Proprio Summorum Pontificum Papst Benedikts XVI. und der Begleitbrief an die Bischöfe:

Ein kirchenrechtlicher Kommentar und Überlegungen zu einer, Reform der Reform (Bonn: Verlag für Kultur

und Wissenschaft, 2010), pp. 28–35.8 ‘Centennial’ custom, which is at least one hundred years old, and treated in the same manner in CIC as

immemorial, could also be referred to here. I shall focus exclusively on the ‘custom’ of the Roman Rite as

immemorial. I omit discussion of a ‘privilege’ in Quo Primum, which I think is unlikely.9 Sacred Congregation for Divine Worship, Letter to the presidents of the episcopal conferences Quattuor Abhinc

Annos (3 October 1984), AAS, 76 (1984), pp. 1088–89; Blessed Pope John Paul II, Apostolic Letter given ‘motu

proprio’ Ecclesia Dei (2 July 1988), AAS, 80 (1988), pp. 1495–98. One could also mention indults here, and the

constitutions of certain institutes of consecrated life and religious houses, for instance, which also indicate the

use of the usus antiquior.

17IMMEMORIAL CUSTOM AND THE MISSALE ROMANUM OF 1962

ascertain if immemorial custom alone is a legal pretext for celebrating the usus

antiquior Mass today, one has to examine it from the perspective of the previous code

(CIC, 1917) and the canonical tradition, although it has to be said that, aside from

several important changes, customary law from CIC, 1917 to CIC, 1983 onwards

basically remains the same, and canonical tradition retains its validity as an interpre-

tative source.10 Our enquiry might be viewed as purely historical, after the freedom

and wide legal status granted to the usus antiquior in Summorum Pontificum; how-

ever, this is not the case. It is important to know if the thesis in question, concerning

canon law and, in this case, the liturgy, was, and is, sustainable or not.

Prominent among those who advocated the legality of using the Missale Romanum

(1962) on the pretext of immemorial custom was Count Neri Capponi, D.Cn.L.

(Lateran), LL.D. (Florence), an advocate of the Holy Roman Rota and of the

Apostolic Signatura, and assistant professor in canon law at the University of Flor-

ence. He maintained, in the 1970s, that immemorial custom was ‘the chief juridical

argument of those who maintain that the old missal of St Pius V is still in force’.11

Capponi’s thesis also raises one particularly important canonical point, among

others, namely the possibility of a custom becoming a ‘true’ law. We are not speaking

here of custom as vis legis (that is, a custom with the force of law), or the ‘approval’

(CIC, 1983)/‘consent’ (CIC, 1917) of customs by a legislator, but of a custom actu-

ally becoming a law (lex).12 It was proposed by some canonists in the past, as we shall

see, that when a custom is made positive legislation by a legislator then the ‘bond of

custom’ which previously regulated the matter remains intact alongside the law itself.

This argument was extended by Capponi and others to the Missale Romanum (1962),

such that the immemorial custom of the Roman Rite of Mass was maintained despite

becoming a universal law in Quo Primum, and was not abrogated by the new missal

of Pope Paul VI. Capponi’s work on this subject, understandably, has been very

influential in traditionalist circles;13 however, it appears that his specific argumenta-

tion has not been adequately scrutinized by those who have taken an interest in

immemorial custom and the Missale Romanum (1962), even by those who disagree

with this proposition.14 I shall therefore approach the whole question by an examina-

tion of Count Capponi’s viewpoint, and by way of proposing dubia. Custom is a

very technical aspect of canon law, and few priests, religious, and laity have made a

10 CIC, 1917, c. 6 § 2–4; CIC, 1983, c. 6 § 2.11 Neri Capponi, ‘Alcune considerazioni giuridiche in materia di riforma liturgica’, Archivio giuridico ‘Filippo

Serafini’, 190/2 (1976), pp. 147–73; I will use the English translation, Some Juridical Considerations on the

Reform of the Liturgy (Edinburgh: David MacDonald, n.d.) (p. 7).12 The word ‘law’ in English is used to translate ius and lex. Lex means ‘law as legislation’, referring to norms

enacted by a legislative authority. Ius has a more general meaning, and refers to any kind of normative law,

such as divine law (ius divinum), ecclesiastical law, and norms issued by executive authorities. Generally,

‘law’ should be interpreted here as lex. See Amaleto J. Cicognani, Ius Canonicum, 2 vols (Rome: ex Schola

Typographica Pio X, 1925), II, p. 32; John M. Huels, ‘General Norms: Introduction’, in New Commentary on

the Code of Canon Law (hereafter NCCCL), ed. by John P. Beal, James A. Coriden, and Thomas J. Green

(New York, NY and Mahwah, NJ: Paulist Press, 2000), pp. 47–48.13 E.g. Davies, The Legal Status of the Tridentine Mass.14 Peter Vere and Michael Brown, ‘Custom and the 1962 Roman Missal’ <http://jloughnan.tripod.com/custom.

htm> [accessed 18 August 2011]. ‘Immemorial custom’ is automatically presumed, without discussion, in Bux

and Vitiello, p. 2.

18 ANSELM J GRIBBIN

detailed study of it. So I shall begin with a very brief summary indicating some —

although not all — aspects of what custom actually is, especially immemorial custom,

from the perspective of CIC, 1917, with reference to CIC, 1983.

Some elements of customary law (CIC, 1917)15

1. Definition: A custom is a normative practice of the community introduced by

the community itself, unlike a law, which is a norm introduced by a legislator.

This is the main difference between a custom and a law, i.e. their origins;

however, as we shall see, the role of the competent legislator for the lawful

approval of customs is essential.16 Customs have frequently been described by

canonists as ‘the unwritten law’ to distinguish them from law, as laws are

prescribed by legislators, but this does not mean customs cannot be written

down, while remaining customs. It is a general norm for the community that

regulates a matter which could also be regulated by a law; in this instance it

could also be when a law is not observed, knowingly or otherwise (desuetude).

A custom de facto can become a custom de iure, giving it legal protection (vis

legis). Customs are universal (customs which exist in the majority of areas of

the Latin Church) and particular (in force in one or more areas or communi-

ties, but not widespread), and can be distinguished as contra ius (legem:

contrary to CIC), praeter ius (‘beyond the law’: where the law says nothing

about the specific matter which is regulated by these customs) or — more

controversially today — secundum legem (‘in accord with the law’). There are

also customs which are ‘centennial’ and ‘immemorial’ (see below).

2. Concerning universal and particular customs which are contrary to CIC, there

are those which are expressly reprobated (reprobantur) by CIC itself, and may

not be observed, even centennial and immemorial, and may not be revived in

the future, unless the law reprobating them is itself abrogated; and those which

the code expressly permits to continue — even if contrary to the norm of the

code — and which may also be contained in a general reference to a particular

or proper law. All other universal and particular customs contrary to the code,

which are not expressly reprobated by CIC, nor centennial or immemorial, nor

15 For this section see CIC, 1917, cc. 5, 25–30 and CIC, 1983, cc. 5, 23–28; Alphonse Van Hove, De Consuetu-

dine — De Temporis Supputatione, in Commentarium Lovaniense in Codicem Iuris Canonici, vol. 1, in five

books (Malines and Rome: Dessain, 1928–39), bk. 3 (1933); Alphonse Van Hove, ‘De Legibus Ecclesiasticis’, in

Commentarium Lovaniense in Codicem Iuris Canonici, vol. 1, in five books (Malines and Rome: Dessain,

1928–39), bk. 2 (1930), pp. 58–65; Gommarus Michiels, Normae Generales Iuris Canonici: Commentarius Libri

I Codicis Iuris Canonici, 2nd edn, 2 vols (Paris, Tournai and Rome: Desclée, 1949), II (1949), pp. 1–220; Joseph

Sirna, ‘Consuetudo’, in Dictionarium Morale et Canonicum, ed. by Peter Palazzini, 4 vols (Rome: Catholic

Book Agency, 1962–68), I (1962), pp. 938–41; Stanislaus Woywod, A Practical Commentary on the Code of

Canon Law, rev. ed. by Callistus Smith (New York and London: Wagner and Herder, 1952), pp. 3–4, 17–19;

Beste, pp. 59–60, 94–101; John M. Huels, ‘Custom [cc. 23–28]’, in NCCCL, pp. 86–96; R. G. W. Huysmans,

Algemene Normen van het Wetboek van Canoniek Recht, in Novum Commentarium Lovaniense in Codicem

Iuris Canonici, 5 vols to date (Louvain: Peeters, 1993–), I (1993), pp. 57–58, 117–28.16 Van Hove, De Consuetudine, pp. 4–5. ‘Definitur in iure canonico consuetudo iuris “ius legale populi moribus

accedente legislatoris consensu introductum”’; Michiels, II (1949), pp. 6, 8–10. ‘ius obiectivum seu legale non

scriptum accedente legislatoris ecclesiastici consensu diuturnis populi christiani moribus introductum’.


expressly excepted by the code, are suppressed by CIC, 1917 (and CIC, 1983)

and may not be lawfully observed, although are capable of being revived in the

future. Other customs can also be formed in the future.

3. For a custom de facto to obtain vis legis (de iure):

A. It must be introduced by an ‘identifiable ecclesiastical community’ —

the nature of this communitas was much debated before CIC, 1983 —

juridically connected to the Catholic Church, which is capable (capax) of

receiving a law, and is supervised by someone with legislative power; the

community must have the intention (animus) of introducing a normative

practice which it considers binding; it must be a practice of the

community or the majority (maior et sanior pars).

B. A custom also requires the consent (consensus) — approval (approbatio)

in CIC, 1983 — of a legislator; for example, the Pope, the ‘supreme

legislator’, can approve universal and particular customs, a bishop for

particular customs, etc. In CIC, 1983 all legislators may approve customs

and not just ecclesiastical authorities, as was the case with CIC, 1917,

within their own competence.17 Approval can be ‘specific’, either ‘express-

ly’ in a public document, any time within the forty years necessary to form

a custom (this is thirty years in CIC, 1983), or ‘tacitly’, or with ‘legal’/

‘general’ approval.

C. A custom must also be reasonable (rationabilis); for example, it must not

be contrary to divine law or harm the common good. Customs contra

or praeter legem must be legitimately observed for forty continuous

and complete years (thirty years in CIC, 1983), which means ‘without

interruption’, freely done, provable, not coerced, repeated, public, not

concealed.

4. Concerning the revocation of custom, a new law, explicitly or tacitly, can

abrogate or derogate a custom, if it is contrary to it — the two are incompat-

ible — with the exception of centennial and immemorial customs, and, in the

case of universal law, particular customs, which must be expressly mentioned.18

A legal custom coming into being and observing the usual requirements

for custom can revoke an older custom, if contrary to it, for example, by the

contrary practice of not observing it. A particular legislator can revoke, for his

particular jurisdiction, any custom within his competence that is contra, as well

as praeter, to universal or particular law.

5. It is important to know exactly what is meant by centennial and immemorial

customs.19 Centennial customs are at least one hundred years old. Immemorial

customs ante-date the memory of the oldest persons in the community; they

have been observed for as long as anyone can remember. It is not known

for certain when these customs began and it could be less than one hundred

years, although opinion varies among older canonists.20 Apart from reprobated

17 Cf. CIC, 1917, c. 25 and CIC, 1983, c. 23.18 Pace Vere and Brown. ‘Furthermore, one needs to consider the majority opinion of canonical authors, namely,

when a legislator revokes a previous law he also revokes any custom that this law governed’ (my emphasis).19 The canons which concerns us here are CIC, 1917, c. 5; 27 § 1; 28; 30: cf. CIC, 1983, cc. 5 § 1; 26, 28.20 Cicognani, I, pp. 156–57; Van Hove, ‘De Legibus’, p. 60; Van Hove, De Consuetudine, pp. 16–17; Sirna,

‘Consuetudo’, p. 939; Michiels, II (1949), p. 15.

20 ANSELM J GRIBBIN

centennial and immemorial customs, and other customs which are allowed to

continue if explicitly mentioned in the code, contained in a general reference

to particular or proper law, other centennial or immemorial customs may be

tolerated if, in the judgement of the ordinary,21 they cannot be removed,

according to circumstances and places. In other words, they may be tolerated

if, in the ordinary’s judgement, they cannot be removed without causing harm

or disturbance in his territory or community. This ‘toleration’ is a permissio

comparativa and not a licence or dispensation from the law.22 The ordinary

may do so by decreeing or declaring that the custom may be observed, or

tacitly recognising it, by being aware of the custom’s continued observance

and doing nothing to remove it. These customs prevail against a canonical

law (lex canonica) which contains a clause prohibiting future customs, unless

express mention is made of them; however, a legal custom tacitly revokes an

older custom if it is contrary to it, even if it is centennial or immemorial for

example, by desuetude of forty (thirty in CIC, 1983) years: the contrary prac-

tice of not observing it. These older customs could be restored if the commu-

nity wishes this, with the requisite period of forty years (CIC, 1983: thirty

years) to obtain vis legis; a longer period of observance (as discussed above)

would then be required for them to become centennial or immemorial once

more.

Having now examined what custom is, we shall state the dubia which contain two

questions; then Count Capponi’s own position on immemorial custom and the

Missale Romanum (1962), from Some Juridical Considerations on the Reform of the

Liturgy; we shall then analyse Capponi’s argumentation and his sources; lastly I shall

give my own responsio, based on the analysis of Capponi’s argumentation and

sources, and will attempt to bring matters up-to-date with Summorum Pontificum.

Dubia

Previous to the papal bull Quo Primum of Pope St Pius V (1570), which codified the

liturgy of the Latin Church, the liturgy was regulated by customary law. The legal

status of this missal was altered by Pope Paul VI’s Apostolic Constitution Missale

Romanum (1969) and the promulgation of a new missal (1970). It is argued that this

codification (in 1570) of the Roman liturgy — in this instance the Eucharistic liturgy

— did not affect or abolish the bond of custom which previously regulated it, i.e. the

immemorial custom of celebrating the rite remained after Quo Primum and Missale

Romanum. Therefore, prior to papal legislation concerning the ‘Tridentine’ Mass

in the 1980s, CIC, 1983, and the motu proprio Summorum Pontificum (2007),

two important questions were raised in respect of canon law, the liturgy and

(immemorial) custom:

21 On ‘ordinaries’ in CIC, 1917 — e.g. the Pope, diocesan bishops — and their classification, see Beste,

pp. 224–31, 293, 334–35, 349–76.22 Van Hove, ‘De Legibus’, pp. 60–61.


1. If a lawful custom should be reduced to writing by the legislator and not merely

approved and commended to the subjects, but set forth as binding as a true law, does

the bond of custom, to which the bond of written law is added, remain?23

2. Can a priest celebrate Mass using the Missale Romanum (1962) on the pretext of

immemorial custom alone?

Count Neri Capponi, the Missale Romanum (1962), and customary law

We begin with Count Capponi’s position in regard to the dubia, with his argumenta-

tion:

We have demonstrated in the second part of this study how the Mass codified by Pius V

[in Quo Primum], had become stabilised in the West in a definitive text, which was the

product of a millenary development and regulated by customary laws, so that there was

no precedent in the history of the Church for the legislative act of Pius V, by which there

was superimposed upon customary law a Papal law which was to govern the subject-

matter from then on. Now the majority view of canonists, following that of Suarez, holds

that where a certain subject-matter that is already regulated by customary law becomes

also regulated by written law, the latter does not take the place of custom but is added

to it in such a way that the subject-matter becomes controlled both by the preceding

customary law and by the subsequent written law, with no abrogation of the customary

law, which still continues to regulate the matter in question. There is no doubt that this

opinio iuris had an influence on the drafting of Canon 30 of the Codex [i.e. 1917] which,

with regard to customary law, limits the obrogatory force of subsequent laws, excluding

it both in cases of particular customs and in cases of centennial or immemorial customs

such as those in which we are concerned. Since, then, the Constitution Missale Romanum

[of Pope Paul VI] perhaps obrogates Quo Primum but certainly does not abrogate the

millenary and particular customary law that regulated the Mass rite of the Roman and

Latin Church prior to the Pian Bull, that rite remains in force (for this if for no other

reason) alongside the new one regulated by the Pauline Constitution.24

Concerning Capponi’s reference to Suarez, we find the following footnote, which

Capponi took from Amaleto J. Cicognani and Dino Staffa’s commentary on the first

book of CIC, 1917:

Cicognani-Staffa, Commentarium in librum I Codicis, Rome, vol. II, 19–20, note 4: ‘The

question is asked: if a lawful custom should be reduced to writings by the legislator and

not merely approved and commended to the subjects, but set forth as binding by a true

law, does the bond of custom, to which the bond of written law is added, remain, or is

the custom changed into written law, yielding its place and force to it? We think that the

bond of custom remains along with the bond of written law. (Cf. F. Suarez, De Legibus,

L. VII, c. 2, n. 4; Michiels, Normae Generales II, p. 8; contra A. Van Hove, De Consue-

tudine et de temporis supputatione, n. 3). Certain texts indeed confirm our opinion, e.g.

c. 2, III, 4, in VI; c. 3, IV, 18, in VI; cf. also Benedict XIV’s Constitution Singulari of

23 Capponi, Some Juridical Considerations, p. 21, n. 52.24 Capponi, Some Juridical Considerations, pp. 21–22 (with Capponi’s emphasis).

22 ANSELM J GRIBBIN

9 February 1749 par. 10 in Gasparri, Fontes, 2, n. 394, p. 196. Moreover certain decisions

of the Roman Curia depend upon custom rather than law even after the custom has been

confirmed by law (cf. e.g. A.A.S. 1914, p. 556; A.A.S. 1920, p. 134). It can also be asked

whether a custom, being confirmed by a subsequent law, loses its force when the law has

been abrogated? It seems that we must distinguish: if it be a question of universal custom

to which a written law is added, it appears that with the abrogation of the law the custom

is also abrogated, because now the will of the legislator to introduce a new discipline

everywhere is obvious otherwise the abrogation of the law would not have its force and

meaning; but if it be a question of particular custom to which is added a universal (i.e.

general) written law, it is not thought that with the abrogation of the law the previous

particular custom is abrogated (cf. F. Suarez, loc. cit.): e.g. if before the Codex a particu-

lar century-old [i.e. centennial] or immemorial custom was held, to which had been

added a universal law, and this should be contrary to the Codex, the general law is

abrogated under c. 6 n. I, while on the contrary the particular custom can be allowed

under c. 5 if the Ordinary should consider that in view of local and personal circum-

stances it cannot be prudently done away with: cf. Vol. I, pp. 73–74 (p. 21, n. 52)’.25

Furthermore, Capponi comments on the instructions Constitutione Apostolica and

Liturgicae Instaurationes, and the notifications of 14 June 1971 and 28 October 1974,

concerning the implementation of the new missal:

Such acts of the Sacred Congregation [of Divine Worship], especially the Notifications,

rank as merely interpretative and executive of the law in force, that is, in this case, of the

Constitution Missale Romanum [of Pope Paul VI]. Therefore, both because of their

specific nature and because, being approved simply in forma commune, they have no

power whatever to derogate, abrogate or obrogate by their own authority. Substantially,

in fact, these documents restrict themselves to affirming that Missale Romanum is a

legislative act intended to bind all who are subject to the law, and that it has obrogated

the Bull Quo Primum, and, as well, the customary law that regulated the old Roman Rite

[cf. Notification 28 October 1974 cit.]. Now if, albeit with some perplexity, we can allow

the first two assumptions in that they come, at least formally, within the interpretative

powers of the Congregation, we absolutely cannot agree to the third because, as we have

seen, c. 30 requires an explicit abrogation of this type of custom; an implicit one is

not enough. Moreover, merely administrative acts like the documents examined cannot

derogate from the norms of the Codex, much less take the place of the Papal legislator

by abrogating what he has not thought opportune to abrogate. Nevertheless, faithful to

this mistaken position, the Congregation of Divine Worship persists in regarding the

survival of the ancient Roman rite as entirely exceptional and in derogation from the law,

accordingly restricting its use to very limited categories of priests and at the same time

excluding the people when, at least by virtue of established custom, all celebrants should

be free to use it and all the faithful to take part in it.26

25 Amaleto J. Cicognani and Dino Staffa, Commentarium ad Librum Primum Codicis Iuris Canonici, 2 vols

(Rome: Buona Stampa and the Pontifical Institute of Law, 1939–42), II (1942), pp. 19–20, no. 4, where the

original Latin text may be found. For convenience I shall utilize the English translation, with the Latin text in

Michiels, II (1949), p. 9 (and no. 1).26 Capponi, Some Juridical Considerations, pp. 24–25.


Capponi also says in a footnote:

The Instruction Constitutione Apostolica limited the use of the old rite to priests aetate

provecti who celebrate sine populo with a possible extension to those who are infirm

— aut aegritudine vel aliis difficultatibus laborantium. The Notification of 28 October

1974, however, widens the categories of those to whom, always by way of exception, the

use of the old Mass may be permitted. This is by including in any case (and not only as

possible beneficiaries of individual indults) alongside the old priests also those who,

through infirmity, graves experiuntur difficultates in Novo Ordine Missalis Romani vel

Lectionarii Missae servando. Are we permitted to think that these second thoughts on the

part of the Roman Congregation show that it has realised that it cannot with impunity

violate the law by forbidding what the Papal Legislator had allowed to remain?27

Capponi would answer both questions of our dubia in the affirmative.

An analysis of Count Capponi’s viewpoint

It is evident Capponi believes that the immemorial custom regulating the Roman

Rite prior to its codification in Quo Primum (1570) is particular. This, according to

Capponi, was unaffected (i.e. not abrogated) by the Apostolic Constitution Missale

Romanum of Pope Paul VI, which perhaps obrogates Quo Primum.28 Concerning the

regulation of the Latin/Roman Rite, it suffices to say that, in the first centuries of the

Latin Church, there was no uniform legislation of the liturgy, and a body of local

(particular) custom developed, with a certain latitude granted to the celebrant of the

Mass and heads of churches, for example, concerning the liturgical texts and ceremo-

nies used, apart from unchangeable elements, such as those of divine origin.29 The

liturgical texts were gradually collected in the ‘Sacramentaries’, in the Middle Ages

and before, and there were efforts in some areas, dioceses, and religious orders,

towards more unified liturgical observances. This helped to gather and stabilize litur-

gical customs, but, as such, the liturgy of the various ‘uses’ of the Roman Rite, espe-

cially before the age of printing, was difficult to standardize.30 The bull Quo Primum

promulgated and imposed on all churches in the Latin Rite a new missal, unless they

could claim to have been using their own liturgical uses for at least 200 years;

27 Capponi, Some Juridical Considerations, p. 24, no. 61.28 Confusingly, in 1996, Capponi described the immemorial custom as ‘immemorial and universal custom’ (my

emphasis) and that the constitution Missale Romanum ‘abrogated’ Quo Primum, while not abrogating

the immemorial custom: Neri Capponi, ‘Bishops Against the Pope: The Motu Proprio “Ecclesia Dei” and the

Extension of the Indult’, The Latin Mass Society, Winter (1996) <http://www.ewtn.com/library/LITURGY/

BISHPOPE.TXT> [accessed 18 August 2011]. Here we shall take for granted Capponi’s ‘obrogation’ theory,

in light of his earlier work and Summorum Pontificum. I shall return to the point of ‘immemorial and

universal’ custom later.29 M. Noirot, ‘Liturgique (Droit)’, in Dictionnaire de Droit Canonique, 7 vols, ed. by R. Naz (Paris: Librairie

Letouzey et Ané, 1935–65), VI (1957), cols 535–94.30 See O’Connell, p. 9; Anselm J. Gribbin, ‘Le missel de l’abbé Auger de Lagrasse’, in Auger de Gogenx (1279–

1309), in Les cahiers de Lagrasse 1 (Sète: Nouvelles Presses du Languedoc, 2010), pp. 68–89; David M. Hope,

‘The Medieval Western Rites’, in The Study of the Liturgy, ed. by Cheslyn Jones, Geoffrey Wainwright, and

Edward Yarnold, 1st edn (London: SPCK, 1978), pp. 220–40 (p. 237); Clifford Howell, ‘From Trent to Vatican

II’, in The Study of the Liturgy, ed. by Cheslyn Jones, Geoffrey Wainwright, and Edward Yarnold, 1st edn

(London: SPCK, 1978), pp. 241–48 (pp. 241–42).

24 ANSELM J GRIBBIN

however, the latter could adopt the new missal if they wished. This demonstrated

great respect for local ‘longstanding’ immemorial customs, despite the imposition of

liturgical models then current in Rome.31 Quo Primum did not introduce a new rite,

but was the introduction, for the first time by the Holy See, of a standard missal for

the Latin Rite. It brought about greater liturgical unity, which the Holy See had

desired for a long time, and more central control of the rite, which should also be

seen in the context of the Catholic Reformation.32 Capponi is therefore largely correct

in what he says about particular customs regulating the liturgy before Quo Primum.

Nevertheless, it is important to note that, as well as ‘particular’, local customs in

the liturgical uses, one can surely also speak of the existence of ‘particular laws’ (‘We

by no means rescind their prerogatives [constitutiones] or customs’, i.e. those with

missals more than 200 years old)33 and those particular customs of the Roman Rite

common to all its uses, and even the imposition of papal laws affecting the universal

Church, without undermining the great authority of the local regulation of customs

before Quo Primum.34 Whether the legislative act of Pope St Pius V in Quo Primum

was the ‘superimposition’ of papal law affecting the particular immemorial custom

regulating the Roman Rite still remains to be seen. At this point, we can say, with

the codification and unification of the Roman liturgy, that particular customs which

were contrary to the provisions of Quo Primum were well and truly abrogated, even

immemorial.35

In order to defend his position on particular immemorial customs and the celebra-

tion of the old Missale Romanum, Capponi mentions Suarez and the ‘majority view

of canonists’ as justification for his statement that ‘where a certain subject-matter that

is already regulated by a customary law becomes also regulated by a written law, the

latter does not take the place of custom but is added to it in such a way that the

subject-matter becomes controlled both by the preceding customary law, which

still continues to regulate the matter in question’. He underpins this by referring the

reader to the works of several other canonists and papal or curial documents, as

indicated by Cicognani and Staffa.36

One of the canonists cited by Cicognani and Staffa was Gommarus Michiels, in the

first edition of his Normae Generales Iuris Canonici from 1929 (vol. II);37 however,

it is unfortunate that Capponi retained this reference — which I shall refer to again

shortly — and did not indicate Michiel’s later examination of customs in the second

31 Further clauses may be read in Pope St Pius V, bull Quo Primum, pp. v–vi.32 Concerning this, ‘Gallicanism’ and the ‘uses’ which remained, see O’Connell, p. 10; Noirot, col. 541.33 Pope St Pius V, Quo Primum, p. v. ‘ut praefatam celebrandi constitutionem vel consuetudinem nequaquam

auferimus’.34 Noirot, cols 543–45; Van Hove, De Consuetudine, pp. 34–35.35 One should also note the following clauses of the bull: ‘notwithstanding the previous constitutions and decrees

of the Holy See, as well as any general or special constitutions or edicts of provincial or synodal councils,

and notwithstanding the practice and custom of the aforesaid churches, established by long and immemorial

prescription — except, however, if more than two hundred years’ standing’; Pope St Pius V, Quo Primum,

pp. v–vi. ‘Non obstantibus praemissis, ac constitutionibus, et ordinationibus Apostolicis, ac in Provincialibus

et Synodalibus Conciliis editis generalibus, vel specialibus constitutionibus, et ordinationibus, nec non

Ecclesiarum praedictarum usu, longissima et immemorabili praescriptione, non tamen supra ducentos annos,

roborato, statutis et consuetudinibus contrariis quibuscumque.’36 See note 25 above.37 Gommarus Michiels, Normae Generales Iuris Canonici: Commentarius Libri I Codicis Iuris Canonici, 1st edn,

2 vols (Lublin: Catholic University, 1929), II, p. 8.


edition of this work (1949). In this later edition, Michiels actually discussed the

position taken by Cicognani and Staffa in the context of customs as non scriptum.38

This term, as we have seen, was used by canonists to emphasize that customs come

from the practices of the community and not as a law originating from a legislator.39

A legislator can ‘commend’ (in mera commendatione) and — in the context of CIC,

1917 — give his ‘consent’ to a custom. Nevertheless a point ‘disputed among

Auctores’ is what happens when a norm, which is observed as a custom in the com-

munity, is promulgated as a true law by a competent superior (i.e. legislator). This

became especially evident when, after the codification of CIC, 1917, a number of laws

taken up by the code had previously existed in accordance with the norms of custom,

that is, they were customs which were made into positive law.40 Michiels then cites

the reference to Suarez’s De Legibus as indicated by Cicognani and Staffa, where

Suarez says that the promulgation of customs as law adds to them the juridical force

of a new law, without, however, overturning the force of custom:

And the reason, according to him [i.e. Suarez] is that it is not incompatible for these two

bonds to persist simultaneously, namely that of custom and that of written law, just as it

is possible for there to be, at the same time, two written laws concerning the same matter,

and which are both obligatory. And therefore these same written laws frequently allege

custom and written law, just as they, in the same way, corroborate an honourable cause

or obligation [. . .] Nor is the continuance of the custom and its obligation useless, in spite

of written law; for if the custom is particular, and the supervening written law is common

law [. . .] and it happens that such a law is derogated by privilege, nevertheless where an

older custom was in use, this was not considered as being derogated by that privilege,

unless the custom was also explicitly derogated. And therefore it is not a question of only

a way of speaking, but of a matter, because the moral effects can be greatly accounted

for by the fact that the custom, which begins without law, continues with the law, and

retains its force, according to which it shall always be an unwritten law.41

38 Michiels, II (1949), pp. 8–10.39 Michiels, II (1949), p. 8. ‘“Non scriptum”, non hoc sensu quod consuetudo, postquam inducta fuit, in

scripturam redigi non valeat, sed “quod in primo sui exordio, non ex scripto, vel praecepto alicuius legislatoris,

sed ex usu et moribus utentium descenderit, neque postea tamquam nova lex per aliquem legislatorem fuerit

praescripta”’, citing Reiffensteul, 1.I, tit. 4, n. 19.40 Michiels, II (1949), pp. 8–9 (p. 9). ‘disputatur vero inter Auctores, quando norma iam a communitate ut

consuetudinaria servari solita a Superiore competente simpliciter promulgatur per modum verae legis, nulla

mentione facta consuetudinis iuridicae iam existentis (ut factum est in Codice Iuris Canonici, in quo plures

continentur leges quae iam ante Codicis promulgationem hinc inde vigebant ut normae consuetudinariae)’.41 Michiels, II (1949), p. 9, citing Suarez, as referred to by Cicognani and Staffa, pp. 19–20, no. 4: ‘Iuxta Suarez

tali promulgatione consuetudini iuridicae superadditur vis nova verae legis, quin tamen destruatur eius vis

consuetudinaria; “Et ratio est, iuxta ipsum [i.e. Suarez] quia non repugnat, illa duo vincula simul permanere,

scilicet consuetudinis et legis scriptae, sicut possunt esse simul duae leges scriptae de eadem re, simulque obli-

gare. Et ita ipsamet iura scripta saepe allegant consuetudinem et ius scriptum, tamquam simul corroborantia

rei honestatem vel obligationem [. . .] Neque est inutilis perseverantia consuetudinis et obligationis eius,

non obstante lege scripta, quia, si consuetudo sit specialis [i.e. particular], et lex superveniens scripta sit ius

commune et contingat per privilegium derogari talem legem, nihilominus ubi antiquior viguit consuetudo, non

censetur per illud privilegium derogata, nisi expresse etiam consuetudini deroget. Et ideo non est quaestio de

solo modo loquendi, sed de re, quia ad morales effectus multum referre potest quod consuetudo, quae incipit

sine lege, currat cum lege, et suam vim retineat, secundum quam semper erit non scriptum ius”’. For the

original and much longer text, see Francisco Suarez, Opera Omnia, 26 vols, ed. by Michel André and Charles

Berton (Paris: Louis Vivès, 1856–61), V and VI; Tractatus de Legibus, ed. by Charles Berton, VI (1856), p. 140

(L. VII, c. 2, n. 4). Cicognani and Staffa — rather cryptically — give other citations to Suarez, De Legibus, but

the citation already given suffices in indicating Suarez’s opinion.

26 ANSELM J GRIBBIN

An important point which Michiels draws attention to in his discussion of Suarez’s

opinion relates to the kinds of customs they concern, when the bond of law is added,

unless expressly derogated (‘nisi expresse etiam consuetudini deroget’). It is clear,

according to Michiels, concerning the maintenance of customs and the abolition of

the law by which a custom is ‘confirmed’, that Suarez, Cicognani, and Staffa speak

only with regard to particular customs (‘specialem seu particularem consuetudinem’).

This does not apply to universal customs. If one spoke about a universal custom

which had the addition of written law, then it would follow that, if this law was

abrogated, then the custom would be abrogated, otherwise the abrogation of the law

would not make sense, and the will of the legislator to introduce a new discipline

would be thwarted.42 As we have seen, Capponi, citing Cicognani and Staffa, holds

this view, and they also maintain that concerning ‘a particular custom to which is

added a universal (i.e. general) written law it is not thought that with the abrogation

of the law the previous particular custom is abrogated (cf. F. Suarez, loc. cit.)’.43

However, as we continue to read Michiels’ analysis, it becomes evident that

Michiels was not, at least in 1949, wholly favourable to Suarez’s opinion, and that it

is questionable that it reflects, as Capponi proposes, the ‘majority view of canonists’.

Michiels says, contra Suarez, that according to the ‘common opinion’, the norm of

custom which is formally changed into law loses the nature of custom, and here he

cites Alphonse Van Hove, an acknowledged authority on custom, and other canon-

ists, including Antonius De Butrio, Ojetti, Guilfoyle, and — significantly — ‘many

others cited by Suarez’ (‘plures alii a Suarezio citati’).44 Let us turn to Van Hove’s

opinion, where he gives an ingenious reason as to why the norm of custom, when it

is formally changed into law, loses the nature of custom. Law begins with an express

act of a legislator, publically promulgated, while custom originates from acts fre-

quently done by a community. According to modern discipline (i.e. CIC, 1917), a

legislator can grant his consensus to these acts (customs). If customs are written

down, then the nature of custom is not changed; however, if it becomes a law, then

42 Michiels, II (1949), p. 9, n. 3. ‘Notetur permanentiam consuetudinis in casu a Suarezio et Cicognani-Staffa

solummodo affirmari relate ad consuetudinem specialem seu particularem; “si (enim) agatur de consuetudine

universali cui accedit lex scripta, abrogata lege videtur abrogata etiam consuetudo, quia iam patet voluntas

legislatoris novam ubique inducendi disciplinam, secus abrogatio legis vim ac sensum non haberet” (Cicognani-

Staffa, II, p. 19–20, nota 4)’.43 See CIC, 1917, c. 5. ‘Vigentes in praesens contra horum statuta canonum consuetudines sive universales sive

particulares, si quidem ipsis canonibus expresse reprobentur, tanquam iuris corruptelae corrigantur, licet sint

immemorabiles, neve sinantur in posterum reviviscere; aliae, quae quidem centenariae sint et immemorabiles,

tolerari poterunt, si Ordinarii pro locorum ac personarum adiunctis existiment eas prudenter submoveri non

posse; ceterae suppressae habeantur nisi expresse Codex aliud caveat’ (‘Customs presently in force, whether

universal or particular, but against the prescriptions of these canons, if they are indeed expressly reprobated,

are to be corrected as a corruption of the law, even if they are immemorial, nor are they permitted to revive

in the future; other customs, clearly centenary or immemorial, can be tolerated if Ordinaries determine that,

due to circumstances of person or place, they cannot be prudently removed; other customs are considered

suppressed, unless the Code expressly provides otherwise’).44 Michiels, II (1949), p. 9 and n. 4. ‘Iuxta sententiam communiorem, e contra, norma consuetudinaria eo ipso

formaliter transmutatur in legem et amittit indolem consuetudinis’.


it is no longer a custom.45 Suarez challenged this — as we have already seen — but,

according to Van Hove, this doctrine is abandoned, because the legislator, who has

the right to establish something as a true law, withdraws by the law his consent

for a custom (to exist as a custom with vis legis), and the customary nature of the

thing changes, and is subservient to written law.46 It becomes a true law (lex).

It is interesting to note Van Hove indicates that Michiels contested his opinion,

citing the earlier edition of his Normae Generales (1929), which Cicognani and Staffa

used and which Capponi relied on as a reference. Michiels there also stated that

custom loses its right to exist as a proper (lawful) custom and to formally evade

the law when it is promulgated as a proper law by a legislator, i.e. a custom which

becomes a true law still exists as a custom but loses the rights properly accorded to

a custom in that the matter is also regulated by law.47 This is nonsensical, because

not all customs are contra legem to begin with, and it is difficult to see how a true

custom can continue as a custom if it loses its rights as a custom. It would also be

fair to say that Michiels, to a certain extent, had confused the ‘approbation’ of

customs by a legislator — even stipulating their observance — with the notion of

them becoming a true law. In his 1949 edition of the work, however, Michiels altered

his opinion, citing the sententiam communiorem and Van Hove (1933). Michiels

(1949) also said that — theoretically speaking — it was not objectionable for a norm

which was previously a custom to retain ‘the force of custom’ when it was promul-

gated as a true law, even when the law itself is later abrogated. In reality, however,

the norm which is ad mentem legislatoris should probably be considered as the

actual legal norm — i.e. if a custom is ‘promulgated’ as a law, then it is intended by

the legislator to be a law — and if it ‘ceases’ in the future, the laws applying to the

cessation of a law would then apply. If the legislator intends to retain the custom, he

would not promulgate it per modum legis but purely per modum approbationis.48

45 Van Hove, De Consuetudine, pp. 5–6 (p. 5). ‘Lex enim incipit ab ordinatione legislatoris eiusque actu expresso

et publico promulgatur, dum consuetudo originatur ab actibus qui a communitate frequentantur ita ut, in iure

canonico et iuxta disciplinam hodiernam, legislator, attendens ad actus communitatis, consensu suo valorem et

firmitatem iuris tribuat normae agendi quae de facto iam in communitate praevaluerit. Ius traditum statutum

est a legislatore, non est de moribus communitatis introductum, sed transmissum est posteris traditione; obser-

vantia et moribus populi eius exsistentia probatur [. . .] Quod si tenor consuetudinis scribatur, animo memo-

riae commendandi ius ut consuetudinarium, scriptura non mutat indolem consuetudinis. Si autem scribatur

animo edendi veram legem, lex est, iam non consuetudo’. 46 Van Hove, De Consuetudine, pp. 5–6. ‘Haec doctrina est derelinquenda, quia legislator, condendo ius ut veram

legem scriptam, retrahit consensum suum a iure ut consuetudinario et eius indolem mutat, licet, condendo

ius scriptum, obsecundet consuetudini. Ceterum huiusmodi innovationem facere tantum potest legislator in

materiis, quae ab eius assensu pendeant’.47 Michiels, II (1929), pp. 8–9. ‘Opinamur tamen consuetudinem vim propriam amittere et formaliter evadere

legem, quotiescumque consuetudo fuit a legislatore tamquam propria sua lex formaliter promulgata, ut indu-

bianter factum est quoad multa statuta, antea ut consuetudinaria vigentia, nunc autem in Codice qua verae

leges promulgata’.48 Michiels, II (1949), p. 10. ‘Quamvis theoretice non repugnet ut norma originarie consuetudinaria postea

per modum verae legis firmata et promulgata retineat vim consuetudini propriam, ita ut, in casu quo postea

abrogatur lex ista, vigere pergat qua consuetudo iuridica, in praxi tamen norma ista ad mentem legislatoris

probabilius consideranda est ut norma mere legalis, ita ut, quod attinet ad eius cessationem in futuro, atten-

denda sint sola principia pro cessatione legis in iure vigentia; si enim legislator intendisset eam simul retinere

ut consuetudinariam, eam non simpliciter promulgasset per modum legis, sed per modum merae approbationis’.

28 ANSELM J GRIBBIN

Apart from citing Suarez, Cicognani and Staffa also mention ‘certain texts which

seem to confirm our opinion’. These include the following:49

1. Pope Benedict XIV, Const. [ep.] Singulari, 9 February 1749, § 10.50

2. The Sacred Roman Rota, Mediolanen. Iuris Funerandi, 18 July 1914.51

3. The Sacred Roman Rota, Bergomen. Iuris Funerandi (Pezzoli-Fojadelli), 25 February

1919 (at p. 134).52

As Michiels points out, and as the careful reader of these three documents will

also see — and of which Cicognani and Staffa were also apparently aware — these

documents do not concern customs which have received the addition of written law,

with the bond of custom remaining intact. They are actually instances concerning

the explicit legal approval/consent (approbatio) of (immemorial) customs, and the

procedures required for ascertaining custom (probatio).53 These documents cannot,

therefore, be used to justify any thesis concerning the retention of the bond of custom

where the bond of written law is ‘superimposed’.

We must ask if it is true that the opinio iuris concerning the possibility of a custom

still operating as a custom, even though it becomes a written (true) law, had ‘an influ-

ence on the drafting of canon 30 of the Codex [i.e. CIC, 1917] which, with regard to

customary law, limits the obligatory force of subsequent laws, excluding it both in

cases of particular customs and in cases of centennial or immemorial customs’?54 Here

is the text of the canon:

While observing Canon 5, custom against the law or beyond the law is revoked by a

contrary custom or law; but, unless express mention of them is made, a law does not

revoke centenary or immemorial customs, nor does a general law [revoke] particular

customs.55

It is not apparent, from Van Hove or Michiels — at least — that this opinio iuris,

which the latter indicates is contrary to the sententiam communiorem (while admit-

ting it theoretically, but not in practice), had an influence on CIC, 1917, c. 30.

This opinion is not even mentioned in relation to their extensive examination of

this canon, and Capponi has not indicated any canonical opinion as evidence for his

statement.56 Therefore, particular customs contra legem and praeter legem, which

were abrogated by Quo Primum, ceased to exist, and others, which were allowed to

49 The three documents cited here are too long for inclusion in this article.50 Codicis Iuris Canonici Fontes, ed. by Pietro Gasparri and Justinian Serédi, 9 vols (Vatican City: Typis

Polyglottis Vaticanis, 1923–49), II (1948), pp. 193–99.51 The Sacred Roman Rota, Mediolanen. Iuris Funerandi (18 July 1914), AAS, 6 (1914), pp. 554–60.52 The Sacred Roman Rota, Bergomen. Iuris Funerandi (Pezzoli-Fojadelli) (25 February 1919), AAS, 12 (1920),

pp. 129–39.53 Michiels, II (1949), p. 9, n. 2. ‘Statim autem animadvertere iuvat in locis istis explicite agi de antiqua

consuetudine legibus approbata’.54 See note 24 above.55 CIC, 1917, c. 30. ‘Firmo praescripto can. 5, consuetudo contra legem vel praeter legem per contrariam consue-

tudinem aut legem revocatur; sed, nisi expressam de iisdem mentionem fecerit, lex non revocat consuetudines

centenarias aut immemorabiles, nec lex generalis consuetudines particulares’; CIC, 1917, c. 5 (see note 43

above). For the English translations, see The 1917 or Pio-Benedictine Code of Canon Law in English

Translation, ed. by Edward N. Peters (San Francisco, CA: Ignatius Press, 2001), pp. 30–31, 38.56 Van Hove, De Consuetudine, pp. 215–26; Michiels, II (1949), pp. 198–220.


continue under the provisions of the bull, remained, for the time being at least (see

the responsio).

We must now comment on what Capponi said about the Instructions Constitu-

tione Apostolica and Liturgicae Instaurationes, and the Notifications of 14 June 1971

and 28 October 1974, from the Sacred Congregation for Divine Worship. Capponi

indicates that these documents, especially the notifications, are ‘merely interpretative

and executive of the law in force, that is, in this case, of the Constitution Missale

Romanum [of Pope Paul VI]’. Because they are approved by the Pope in forma com-

mune, according to Capponi, ‘they have no power whatever to derogate, abrogate

or obrogate by their own authority’. As Capponi explains, confirmation in forma

commune simply means that the authority (i.e. the Pope) has confirmed a provision

which, of its nature, should be in conformity with a previous papal or conciliar law

and cannot change it, while in forma specifica confirmation would mean that the

authority assumes the provision as his own, rendering any invalidity as valid, in

respect of previous law. Therefore these documents, while affirming that Missale

Romanum obrogated the Bull Quo Primum, cannot do the same for ‘the customary

law that regulated the old Roman Rite [cf. Notification 28 October 1974]’, which

requires an explicit abrogation (CIC, 1917, c. 30).57

Capponi is largely correct in what he says concerning the interpretation of instruc-

tions and notifications.58 While the nature of the confirmation of these documents

remains important, the following question is our first and main priority here: was any

explicit mention made of immemorial customs in these documents? First, Pope Paul

VI’s Apostolic Constitution Missale Romanum, 3 April 1969, contains no abrogating

clause explicitly revoking any immemorial customs: ‘We wish that these Our decrees

and prescriptions may be firm and effective now and in the future, notwithstanding,

to the extent necessary, the apostolic constitutions and ordinances issued by Our

predecessors, and other prescriptions, even those deserving particular mention and

derogation’.59 On the basis of our examination of customary law, I would politely

disagree with Peter Vere and Michael Brown when they state: ‘when he promulgated

the 1969 liturgical reform of the Roman Missal, Pope Paul VI automatically sup-

pressed any customary right to celebrate Mass according to previous typical editions

of the Roman Missal’.60 The instruction De Constitutione Apostolica (20 October

1969) does not mention immemorial customs and concerns the date for the implemen-

tation of Missale Romanum and the new form of the Mass, and indicates that older

priests can celebrate the previous missal sine populo, with the consent of their ordi-

nary. Those who are sick and would find the new missal difficult to use could also

be considered. It was confirmed in this manner: ‘On 18 October 1969 the Supreme

Pontiff, Pope Paul VI, approved this Instruction, ordered it to become public law, so

that it be faithfully observed by all those to whom it applies. Anything whatsoever

57 Capponi, Some Juridical Considerations, pp. 15–17, 19, 24–25.58 CIC, 1917, cc. 17–18; Michiels, I (1949), pp. 469–580; Beste, pp. 77–85 (especially pp. 80–81).59 Pope Paul VI, Apostolic Constitution Missale Romanum (3 April 1969), p. 222. ‘Nostra haec autem statuta et

praescripta nunc et in posterum firma et efficacia esse et fore volumus, non obstantibus, quatenus opus sit,

Constitutionibus et Ordinationibus Apostolicis a Decessoribus Nostris editis, ceterisque praescriptionibus etiam

peculiari mentione et derogatione dignis’.60 Vere and Brown (my emphasis).

30 ANSELM J GRIBBIN

to the contrary notwithstanding’.61 We should add here that the new missal was

promulgated on 26 March 1970 in the decree Celebrationis eucharisticae by the

Sacred Congregation for Divine Worship ‘by command’ (de mandato) of Pope

Paul VI. No mention is made there, or in other documentation concerning the

promulgation of the new Ordo Missae, of immemorial customs.62

The instruction Liturgicae Instaurationes of 5 September 1970 was the third

instruction concerning the implementation of the conciliar document on the liturgy,

but does not really concern us here, in respect of immemorial customs, although it

mentions that ‘in the cause of holding on to the old tradition, some have received the

changes grudgingly’.63 The notification of 14 June 1971 refers again to celebrating

with the missal of 1962 — with modifications — and the use of the Breviarium

Romanum by old and infirm priests, sine populo and with the ordinary’s permission,

among other matters. It does not mention immemorial customs.64 Finally, the

notification of 28 October 1974, from the Sacred Congregation for Divine Worship,

indicates that the missal, as promulgated by Pope Paul VI, in Latin or the vernacular,

is the ‘only’ missal that may be lawfully used.65 It repeats previous documents

concerning old and sick priests and the missal of 1962, and says that ordinaries

cannot grant permission for these celebrations cum populo;66 however, the following

is of particular interest concerning immemorial customs:

61 Sacred Congregation for Divine Worship, Instruction De Constitutione Apostolica ‘Missale Romanum’ Grada-

tim ad Effectum Deducenda (20 October 1969), AAS, 61 (1969), pp. 749–753 (p. 753). ‘Praesentem Instructionem

Summus Pontifex Paulus Pp. VI die 18 mensis Octobris 1969 approbavit, et publici iuris fieri iussit, ut ab

omnibus ad quos spectat accurate servetur. Contrariis quibuslibet minime obstantibus’.62 Sacred Congregation for Divine Worship, Decree Celebrationis eucharisticae (26 March 1970), AAS, 62 (1970),

p. 554. ‘Celebrationis eucharisticae Ordine statuto, atque approbatis textibus ad Missale Romanum pertinenti-

bus per Constitutionem Apostolicam Missale Romanum a Summo Pontifice PAULO VI die 3 aprilis 1969

datam, haec Sacra Congregatio [. . .] de mandato eiusdem Summi Pontificis, novam hanc editionem Missalis

Romani ad normam decretorum Concilii Vaticani II confectam promulgat et uti typicam declarat [. . .]

Contrariis quibuslibet minime obstantibus’; cf. Notitiae 5 (1969), p. 147.63 Sacred Congregation for Divine Worship, Instruction Liturgicae Instaurationes (5 September 1970), AAS, 62

(1970), pp. 692–704 (p. 704). ‘Alii enim veteris servandae traditionis causa, huiusmodi reformationes aegere

acceperunt [. . .] Hanc Instructionem, quae de mandato Summi Pontificis a Sacra Congregatione pro Cultu

Divino composita est, ipse Summus Pontifex PAULUS VI, die 3 mensis septembris huiusce anni approbavit et

auctoritate Sua confirmavit, mandans ut in vulgus emitteretur, atque ab omnibus, ad quos spectat, servaretur’

(‘This Instruction prepared, by the mandate of the Supreme Pontiff, by the Sacred Congregation for Divine

Worship, was approved by the Supreme Pontiff Paul VI and by his authority confirmed on 3 September of

this year [i.e. 1970], ordering that it be sent forth among the people, and to be observed by all to whom it

concerns’).64 Sacred Congregation for Divine Worship, Notification De Missali Romano, Liturgia Horarum et Calendario

(14 June 1971), AAS, 63 (1971) pp. 712–15. The notification ends: ‘Ex aedibus Sacrae Congregationis pro

Cultu Divino, die 14 iunii 1971’ (p. 715). Note 4 of this notification refers to other relevant documentation, and

one could also mention indults, such as that granted to England and Wales.65 Sacred Congregation for Divine Worship, Notification Conferentiarum Episcopalium, Notitiae, 10 (1974),

p. 353. ‘Latina lingua sive lingua vernacula Missam celebrare licet tantummodo iuxta ritum Missalis Romani

auctoritate Pauli VI promulgati, die 3 mensis aprilis 1969’; the emphasis appeared in the notification.66 Sacred Congregation for Divine Worship, Notification Conferentiarum Episcopalium, 353. ‘Nequeunt tamen

Ordinarii huiusmodi facultatem tribuere pro celebratione Missae cum populo’.


These same ordinaries, both local or religious, should rather exercise the same vigilance

[i.e. regarding the acceptance of the new Order of Mass and the new Roman Missal],

without prejudice to non-Roman liturgical rites, legitimately recognised by the Church,

and notwithstanding the pretext of any custom, even immemorial.67

Concerning the revocation of customs, CIC (1917), c. 30 applies. Immemorial customs

were certainly mentioned by this notification to counter those who used them as a

juridical argument to celebrate the Pian Missale Romanum. Although the formula ‘et

nonobstante praetextu cuiusvis consuetudinis etiam immemorabilis’ would certainly

expressly revoke particular immemorial customs, we are not dealing here with a law,

as Capponi pointed out, but an ‘interpretation’ that was not approved in forma speci-

fica. Thus this notification, relating to the Apostolic Constitution Missale Romanum,

could not in itself — even if it attempted to do so — abrogate or prohibit immemo-

rial customs, if they existed, in its interpretation of the law, and cannot derogate the

law of the apostolic constitution, which did not mention explicitly the abrogation

of any immemorial customs. However, as I point out in my response to the second

question, it appears that the notification was merely stating a legal fact — that is,

giving an interpretation — in respect of ‘immemorial custom’ not being a valid reason

for the use of the missal previous to that of 1970.

Responsio to the Dubia

1. If a lawful custom should be reduced to writing by the legislator and not

merely approved and commended to the subjects, but set forth as binding as a

true law, does the bond of custom, to which the bond of written law is added,

remain?

Responsio: NegativeIt is clear from our analysis of Capponi, with reference to Van Hove and Michiels in

particular, that while the notion of a custom becoming a true law, and remaining a

custom, has been, or still may be, an opinio iuris, it did not reflect the majority view

of canonists, who were not in favour of it. This is not to be confused — as has also

been the case — with instances when a legislator can ‘commend’ the observance of a

custom or explicitly ‘approves’ it (approbatio/consensus). Suarez’s theory of a ‘double

chain’ of law and custom is certainly undeniable in the general context of laws and

customs existing together in the Church, and something can, of course, be regulated

by custom and law.68 However, in the context of a custom, originating from a

community and approved by a legislator, becoming a law (lex), only laws are prom-

ulgated by a legislator as such. While customs can obtain vis legis, the canonical

tradition makes a necessary distinction between custom and lex. A custom must

function as a custom, otherwise it is not, by definition, a custom. This does not stop

a legislator from making customs — even immemorial — into laws, and Pope St Pius

67 Sacred Congregation for Divine Worship, Notification Conferentiarum Episcopalium, p. 353. ‘Invigilent potius

iidem Ordinarii, tum locorum tum religiosorum, ut, salvis ritibus liturgicis non Romanis, ab Ecclesia legitime

agnitis, et nonobstante praetextu cuiusvis consuetudinis etiam immemorabilis’.68 See liturgical examples in O’Connell, pp. 30–32.

32 ANSELM J GRIBBIN

V’s Quo Primum is a case in point. Such a law ceases to be a custom, otherwise one

could not say that the legislator had the intention of making a true law. Suarez’s

comment that a custom remains with the force of custom, even if it becomes a law

— ‘nisi expresse etiam consuetudini deroget’ — does have a certain appeal, espe-

cially for immemorial customs, given their authority. Again, a legislator who makes

a law from a custom must have the intention of making a lex, and thus the custom

must become a true lex.

It is also not without interest that the theory, as proposed by Suarez, Cicognani,

and Staffa, relates to particular customs alone and not to universal ones. This, as

Michiels explained above, is because, if one spoke about a universal custom which

had the addition of written law, then it would follow that if this law was abrogated,

the custom would be abrogated, otherwise the abrogation of the law would not make

sense, and the will/intention of the legislator to introduce a new discipline would be

thwarted. If it was particular custom to which was added ‘universal’ written law,

then, according to this theory, the particular custom would remain, as it is a ‘univer-

sal’ law which is abolished; however, we are once more led to ask what the legislator

intends by promulgating a lex? Surely it is to promulgate a true lex? Universal and

particular customs which become a universal law are no longer customs. Otherwise,

with the theory of Suarez, Cicognani, and Staffa, one is left with the possibility of

absurd consequences. The problem of a local community not being able to remove

or modify a particular custom, which becomes a universal law, is also evident. I con-

cur with Van Hove’s opinion, when he says that the legislator, who has the right to

establish a custom as a true law, withdraws by the law his consent (approval) for a

custom, and the customary nature of the thing thus changes, is subservient to written

law, and attains the prerogatives of law. It is evident that Michiels (1949) also agreed

with Van Hove ‘in reality’ concerning norms ad mentem legislatoris, and one concurs

with Michiel’s opinion concerning a legislator who wishes to retain a custom, i.e.

he would not promulgate it per modum legis but per modum approbationis. This

respects both the integrity of custom and law.

2. Can a priest celebrate Mass using the Missale Romanum (1962) on the pretext

of immemorial custom alone?

Responsio: NegativeThe negative answer to the second question is based upon the premise, as explained

in the responsio to the first question, that the bond of custom does not remain when

a custom — in this case immemorial — becomes a law (lex). The Roman Rite

was regulated largely by particular customary law before Quo Primum (1570). Quo

Primum, in standardizing the liturgy, comprehensively abolished particular customs

— including immemorial — if they were contrary to its provisions. What remained

were those ‘uses’ of the Roman Rite which were more than 200 years old, although

the option was made for these to be abandoned in favour of the new Missale

Romanum (1570). A few dioceses and religious orders retained their uses, and

subsequently other uses and customs were either abandoned or fell into desuetude.

We should also remember the problems with Gallicanism. Other customs — espe-

cially those Roman liturgical customs on which the Pian missal was mainly based

— became true, universal law (lex), and therefore were no longer regulated under


customary law. That this was the intention of the legislator is evident from Quo

Primum itself. Subsequent legislation under Popes Clement VIII, Urban VIII, and

Blessed Pope John XXIII, for instance, before the liturgical changes after Vatican II,

had similar clauses to Quo Primum against customs contrary to the rubrics in other

editions of the missal. The Sacred Congregation of Rites also resisted customs

contrary to its decisions and the rubrics. Yet, despite such resistance from the Holy

See and canon law, it was still possible for customs contra rubricas to come into

being, and for a number of them to obtain the force of law; certain customs were

approved or tolerated by the Sacred Congregation of Rites, including customs praeter

rubricas.69

It is evident that Pope Paul VI’s constitution Missale Romanum (1969) ‘obrogated’

Quo Primum and its missal, but nowadays we would say that this papal bull and

missal were ‘derogated’, as ‘obrogated’ is apparently no longer in general usage in

canon law.70 It is also the case that no immemorial customs were explicitly abro-

gated by Pope Paul, as is required by canon law (CIC, 1917, c. 30; later CIC, 1983,

c. 28). We must again repeat that our analysis has clearly shown that the centuries-old

regulation of the liturgy in the Latin Church by particular immemorial custom had

become law with Quo Primum, with the exceptions noted in the bull. Therefore,

although there is no mention of abolishing immemorial customs by Pope Paul, we

cannot say that the bond of custom attached to the particular immemorial custom,

which became true law with Quo Primum, remained intact as custom, with the

imposition of the new Pauline missal. The notification of 28 October 1974, from the

Sacred Congregation for Divine Worship, was therefore correct to indicate that the

Missale Romanum (1962) could not be used to celebrate Mass on the pretext of

immemorial custom. It merely stated a fact, or perhaps more canonically expressed,

gave an official interpretation of the law, within the limits of its remit. Other

(contrary) customs were either explicitly or tacitly revoked. Any other immemorial

customs concerning the liturgy that were in existence remained after Pope Paul VI’s

Missale Romanum.

Conclusions and the contemporary situation

Our discussion of the use of the Missale Romanum (1962) solely on the pretext of

immemorial custom, as proposed by Capponi and others, has revealed an aspect of

customary law which says much about the integrity of both law and custom in a

liturgical context. Although we have dealt with this question in relation to CIC, 1917,

the canonical principles concerning custom are, again, largely the same for CIC, 1983,

and we should also bear in mind the enduring value of the canonical tradition for

today.71 It has been sufficiently demonstrated that the usus antiquior cannot be used

69 This is discussed in greater detail in Van Hove, De Consuetudine, pp. 199–202; Michiels, II (1949), pp. 187–89;

Beste, p. 101; O’Connell, pp. 26–32; cf. CIC, 1917, cc. 733, 818, 1148.70 Beste, p. 90; Weishaupt, pp. 32 (no. 30), 34; CIC, 1983, c. 20; however, cf. CIC, 1983, c. 1739; John M. Huels,

‘Ecclesiastical Laws [cc. 7–72]’, in NCCCL, pp. 55–86 (pp. 80–81); Huels, ‘Ecclesiastical Laws [cc. 7–22]’, in

NCCCL, pp. 55–86 (pp. 82–83); Thomas J. Paprocki, ‘Recourse Against Administrative Decrees’, in NCCCL,

pp. 1820–37 (pp. 1833–34).71 Compare, for instance, Van Hove, De Consuetudine and Huels, ‘Custom [cc. 23–28]’, in NCCCL, pp. 86–94.

34 ANSELM J GRIBBIN

on the pretext of immemorial custom alone, because that immemorial custom does

not exist.

Although we have not dealt in depth with the issue of the non-abrogation of the

Missale Romanum (1962), which is beyond doubt since Summorum Pontificum, this

issue touches upon liturgical ‘tradition’. This is a relevant point because liturgical

tradition has, as the history of canon law shows, some relation to custom.72 It is also

evident that the liturgy, under the guidance of the Holy Spirit, can grow, develop,

and remain in existence, even when it is codified as law. We should also be aware

of unchangeable divine elements (tradition) as well as the ‘ecclesiastical’ elements

‘grafted’ onto them, which are also sacred. The liturgy is a constitutive element of

the holy and living tradition and is something which may not be tampered with

arbitrarily.73 While Pope Paul VI was clear in his desire to implement the new missal

in 1969, he did not abrogate the missal of 1962, probably out of respect for liturgical

tradition: however the implementation of the new liturgy and ‘respect for tradition’

is clearly another matter.74 Indeed, when Annibale Bugnini, the prime mover in the

reform of the liturgy after Vatican II, asked the Cardinal Secretary of State for

permission to apply to the Pontifical Commission for the Interpretation of Conciliar

Documents for an express ruling that the old missal be abrogated by the new one, in

1974, the Secretary of State refused, as it would cast ‘odium on the liturgical tradi-

tion’.75 Despite prohibitions from the Sacred Congregation of Divine Worship, when

priests had previously been suspended by their bishops for celebrating the ‘Old’ Mass,

the Roman Curia always nullified the penalty whenever the cases were appealed.76

The importance of liturgical tradition as a living organism — metaphorically speak-

ing — indicates the respect which we should have for it, as something that was,

for centuries, mediated through custom, as well as law, even if the largely local

‘customary’ nature of regulation is no longer in force.

In relation to liturgical tradition, law, and custom, the motu proprio Summorum

Pontificum, while acknowledging the value of the Pauline missal, now allows every

priest greater freedom to use the missal of 1962, and refers to the veneration that this

‘expression’ of the Roman Rite should be accorded: ‘it must be given due honour for

its venerable and ancient usage’.77 This, and similar statements by Pope Benedict XVI,

72 Gratian, ‘The Treatise on Laws with the Ordinary Gloss’, trans. by Augustine Thompson and James Gordley,

in Studies in Medieval and Early Modern Canon Law, vol. 2 (Washington, DC: The Catholic University of

America Press, 1993).73 Catechism of the Catholic Church, rev. edn (London: Geoffrey Chapman, 1999), nos 1124–25, which cites The

Second Vatican Council, Dogmatic Constitution on Divine Revelation, Dei Verbum (18 November 1965), AAS,

58 (1966), pp. 817–35 (pp. 820–21, no. 8). For distinctions made between traditionibus divinis and traditionibus

humanis, see Francis Xavier Wernz and Peter Vidal, Ius Canonicum, 7 vols (Rome: apud aedes Universitatis

Gregorianae, 1928–38), I (1938), pp. 342–47.74 Tracy Rowland, Ratzinger’s Faith: The Theology of Pope Benedict XVI (Oxford: Oxford University Press,

2008), pp. 127–28. It is worth comparing this with Pope Paul VI’s speech to the members of the consilium for

the implementation of the Constitution on the sacred liturgy (29 October 1964) in AAS, 56 (1964), pp. 993–96.75 Bux and Vitiello, p. 2, citing Annibale Bugnini, The Reform of the Liturgy (1948–1975), (Collegeville: Liturgica l

Press, 1990), pp. 300–01.76 Bux and Vitiello, p. 3; Christophe Geffroy, Benoît XVI et la Paix liturgique (Paris: Les Éditions du CERF, 2008),

p. 151, no.2; Weishaupt, pp. 31–32.77 Pope Benedict XVI, Summorum Pontificum (7 July 2007), p. 779. ‘ob venerabilem et antiquum eius usum

debito gaudeat honore’.


I suggest, are important reminders that liturgical tradition, which is deeply rooted in

the Church, cannot be ‘boxed in’ by the law, or even by custom, despite its similar-

ity to the customs which protected and expressed it, as indicated in ancient and

medieval canonical sources.78 This is a mistake that has too often been made, and

canonists of former times, in particular, made useful distinctions between traditio

and consuetudo.79 It may be that failure to make such distinctions sufficiently is part

of the reason why immemorial custom was invoked by many well-intentioned indi-

viduals in the 1970s and 1980s, as a legal argument to justify the celebration of what

we now call the usus antiquior. Nevertheless, as Summorum Pontificum demon-

strates, law too can play an important part in fostering a correct understanding of

the continuity of liturgical tradition and protecting it. Ius and lex, as well as custom,

remain at the service of the Church. We should also consider the respect which

the canonical tradition and the Codex accord to immemorial custom, including its

‘toleration’ if need be (CIC, 1917, c. 5; CIC, 1983, c. 5 § 1). Therefore, it is also indeed

valid to maintain and revere an immemorial custom, even to modify it if necessary in

the passage of time, but it must be an immemorial custom which actually exists, and

lawfully so.

Notes on contributor

Dr Anselm J. Gribbin O. Praem. was born in Glasgow in 1967 and is a religious

of Tongerlo Abbey, Belgium. He studied history and classical studies at St Mary’s

College, Strawberry Hill, and theology and philosophy at Maryvale Institute,

Birmingham, and in the ‘Studieconcentratie’ of the Premonstratensians of the Brabant

Circary. He received his doctorate in medieval history from the University of

Cambridge, and has held research posts and fellowships in the universities of South-

ampton, Nottingham, and York. Dr Gribbin is a socius member of the Historical

Commission of the Premonstratensian Order, and has made a particular study of the

Premonstratensians and Carthusians, and the liturgical practices of the Middle Ages.

His publications include Liturgical and Miscellaneous Questions, Dubia and Suppli-

cations to La Grande Chartreuse from the English Carthusian Province (Analecta

Cartusiana, 1999), The Premonstratensian Order in Late Medieval England (Boydell

and Brewer, 2001), English Episcopal Acta 28: Canterbury 1070–1136, with Martin

Brett (British Academy, 2004), and Pope Benedict XVI and the Liturgy (Gracewing,

2011).

Correspondence to: [email protected]

78 See note 72 above. Previously Blessed Pope John Paul II asked that ‘Moreover, respect must everywhere be

shown for the feelings of all those who are attached to the Latin liturgical tradition’; Blessed Pope John Paul

II, Apostolic Letter Ecclesia Dei (2 July 1988), p. 1498, no. 6. c. ‘Insuper, ubique observandus erit animus eorum

qui se sentiunt traditioni Latinae liturgicae divinctos’.79 Felice M. Cappello, Summa Iuris Canonici, 2 vols (Rome: apud aedes Universitatis Gregorianae, 1928–30),

I (1928), pp. 90–91; Wernz and Vidal, I, p. 343; Van Hove, De Consuetudine, p. 23.