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Reservation and Adoration:
A Historical and Devotional Inquiry

Shirley Carter Hughson
Superior of the Order of the Holy Cross

The Holy Cross Press
West Park, New York


transcribed by Dr Elizabeth G Mellilo
AD 2000

Chapter V
The Neglect of the Law

But are there no circumstances under which a law can fall into desuetude? Certain canonists concede that there are; and they state the conditions under two heads:

  1. The contravening custom must be reasonable.
  2. This custom must have adequate, legitimate prescription.

Certainly a mere negative course, contravening a universal practise of the whole Catholic Church of Christ, cannot be called reasonable. Nor can it be said of a law which ceased to be enforced through very gradual, and therefore almost unconscious, neglect, that its disuse is founded on reason. One of the principles laid down by canonists is that a custom arising out of ignorance cannot abrogate a law. There must be an intelligent knowledge of what is going on. Consuentudo inducitur ex scientia non per errorem - custom arises from knowledge, not through error.(1)

The same Constitutions of Peckham which we have quoted, provide several illustrations of desuetude which are undoubtedly founded on reason. For example, his Seventh Constitution also requires that "this Sacrament be carried with due reverence to the sick, the priest having on his surplice and stole, with a light in a lantern before him, and a bell to excite the people to due reverence." Nothing could be more contrary to reverence, and therefore to reason, at the present day, than the observance of this and other similar provisions, while bearing the Sacrament to the sick, let us say, through the streets of Chicago. Therefore such a provision is rightly and with reason regarded as abrogated.

We next consider the question of prescription, and we must first see what is meant by this term. It will then be necessary to review with considerable fullness the history of Reservation in the various portions of the Anglican Church during and since the Reformation, in order to judge whether it can be said to apply in the present case.

Prescription may be defined in popular language to be a right or claim that has been acquired by long continued and uninterrupted custom. A reasonable custom by long usage can acquire the force of law by prescription. Many authorities deny, however, that the mere neglect of a written law can cause it to lose force. They assert that the most that can be said is that it would work an injustice to apply a law without warning which had long been obsolete.(2)

They reject the position that it can ever become unlawful for a man to comply with a law which has been so neglected; although if by so doing he contravened a positive custom which had attained to the force of law, he might be regarded as culpable. But the custom must be positive. "Custom cannot be induced from a negative act, or from non-user; since custom is habit grounded on a repetition of acts."(3) To speak of a negative custom is therefore a contradiction in terms. For example, it would be an absurdity of speech to say that the universal custom of our soldiers in France was not to tomahawk and scalp their prisoners.

We are now to see how these principles apply to the law of Reservation. Here is a canon passed for the purpose of enforcing a practise which the written documents of Church History show to have prevailed for about eighteen hundred years, which means that it goes back to the generation which knew Saint John the Evangelist.

This practice, and therefore this canon, have, in a measure, been neglected for about three hundred years in two small provinces of the Catholic Church, Canterbury and York. It is true that at the present time the neglect is wider, extending to provinces in Canada, Australia, Africa, India, and other parts of the world; and, in less measure, as we shall see, to the United States.

The action of these modern provinces, however, cannot be fairly cited as additional evidence, for in their neglect of Reservation the only justification they offer is that Canterbury and York gave it up. They refer all such questions to what was supposed to have been done in these two English provinces, and make no pretence of deciding them on their merits.

On the other hand, we find certain historical facts that weigh against the contention that this neglect has right and sufficient prescriptive force. To the consideration of this history we must address ourselves, and in so doing we shall attempt to show that the neglect of Reservation in the Anglican Church since the Reformation has been by no means so widespread as has been thought; and, above all, that no positive contravening custom has at any time existed.

We shall, we believe, be able to demonstrate that during the much greater part of the whole period since the first breach with Rome, it has been the common practice in one or another part of our Church, and that it was never forbidden by any competent Church authority.

1. Panormitanus. Quoted by Kempe in Reservation of the Blessed Sacrament, page 75, where is also given at length the principles governing the abrogation of Canon Law by disuse.
2. See Charge of Bishop Phillpot of Exeter, quoted in Pinnock, Laws and Usages, page 292
3.  Owen. Institutes of Canon Law, page 24.

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