Commentaries, Commentary on Judges · Chapter 11 · Excursus 5
¶Of Cuſtome.
NOw bicauſe althinges are certaine and manifeſt, I might returne vntounto the hiſtory. But yet I thinke it good ſomwhat to ſpeake, although briefelye, of Cuſtome, bicauſe it hath great affinitye with preſcription, and bicauſe our aduerſaries doo ſtyrre vp great tumultes, bicauſe of it, and woulde vtterlye oppreſſe vsus with Cuſtomes.
What cuſtome is firme.Cuſtome (as it is had Extra. de Conſuet. chapter the laſt) ought to be agreable vntounto reaſon, and lawfully preſcribed. The ciuil lawes aſſigne vntounto cuſtome ten or twenty yeares, the Canons, thirty or forty yeares. But moſt firme is that cuſtome,Cuſtome againſt the word of God, is of no force. the memorye of whoſe beginning is not extant amonge men. And this ought to be firme, that thoſe thinges which are againſt the woord of God, do by no meanes preſcribe. Wherfore that which the Papiſtes affirme, namelye that the Communion hath bene geuen but vnderunder one kinde thys foure hundreth or fyue hundreth yeares: bicauſe it is manifeſtlye againſt the woorde of God, they cannot proue that it is preſcribed by cuſtome. For ſuche a thyng is not (as you would ſay) preſcriptable. By whiche ſelfe ſame meanes they can not bring the cuſtome of the ſole lyfe of Miniſters, as preſcript: for it was at the begynning extort by violence,Hoſtienſis. and it is againſt the woorde of God: althoughe Hoſtienſis ſaith, that the power of Cuſtome is ſo great, that it compelleth Prieſtes to ſole lyfe,What cuſtome is vicious. in the diſtinction .xxiii. chapter Placuit. But, as the ciuill lawes determine, that Cuſtome is vicious, which eyther is againſt nature, or els agaynſt the common lawe. But that which I hauehave affirmed, hath hys foundacion in the holye Scriptures. For when Chriſt ſayd vntounto the Phariſeis: Hipocrites, why violate ye the commaundement of God, bicauſe of your own tradicion? For God ſaith: Honour thy father, and thy mother. But you ſay: whoſoeuer ſayth to father or mother: The gyft. &c. they might hauehave preſcribed vntounto hym cuſtome, but it was not lawful, bicauſe it was manifeſtly againſt the woord of God.
In the country of Taurus there was a cuſtome, to kyll ſtraungers and geſts. The Perſians had a cuſtome, neuer to deliberate of waighty matters, but in feaſtes, and when they were dronke. Among the Sauromates there was a cuſtome, that when they were drinking, they ſolde their daughters. Theſe preſcribe not, when as they are manifeſtly vicious and euyll. But that cuſtome preſcribeth, which is neither againſt the woord of God, nor the law of nature, nor the common law. For the right of cuſtome commeth of the approbation, and ſecrete aſſent of the people. Otherwiſe, why are we bound vntounto lawes? but bicauſe they were made,What differēce is betwene a lawe and a cuſtome. Ariſtotle. the people conſenting and agreing vntounto them? For this is the difference betwene a cuſtome and a lawe, bicauſe in the one is a ſecrete aſſent, but in the other an open aſſent. Wherfore ſuch cuſtomes cannot be reuoked wythout daunger. Ariſtotle in Politicis admoniſheth, that men which hauehave learned to doo ſiniſter thinges, ought not to be compelled to do thinges dextere. Wherefore in thinges indifferent, and of no great value, cuſtome is to be retayned. It is an old Prouerbe, foreign, that is, Law and Country. For eueryevery region hath certaine cuſtomes of their owne, which cannot eaſelye be chaunged. But as it is ſayde, when they are againſte the woorde of God, or againſte nature, or the common lawe, they do not preſcribe. For then are they not cuſtomes, but beaſtly cruelties.
It is very wel read in the Digeſtes, De legibus & Senatuſconſultis, in the law de quibus: Auguſtine.Cuſtome without reaſon, hath no force. And in the decrees, diſtinction the .viii. chapter Veritate, Auguſtine ſayth: The truth being founde out, let cuſtome geue place: let no mā preſume to preferre cuſtome before truth and reaſon. And in the next Canon, Chriſt ſayd: I am the way, the truth and the life, he ſaid not,Ciprian. Aquarii were they whiche in the Euchariſt, vſed water in ſteede of wyne. I am the cuſtome. Ciprian againſt ye * Aquarii. Let al cuſtome, thoughe it be neuer ſo auncient, geue place vntounto the truth, otherwiſe Peter when he was reprehended of Paul to the Galathians, myght hauehave claymed cuſtome, but he aſſēted rather, that cuſtome ſhould geue place vntounto the truth. Ciprian in the ſame Epiſtle agaynſt the Aquarii: Cuſtome (ſayth he) without truth, is the auncientnes of error: and the more it obteyneth, the more grieuous it is. Let the Papiſtes therfore ceaſe to bragge of their cuſtomes, which are altogether ful both of error and alſo of vngodlines.
Moreouer to eſtabliſh a cuſtome it is not ſufficient, that ſome men do a thyng, or that a thing be often done, vnles it be ſo done, that it be receaued into a vſe,What eſtablyſheth cuſtome. & an inſtitucion to be obſerued. For many thinges are done either raſhely or of neceſſity, which yet we wil not hauehave drawen into a cuſtome. In the digeſtes de Itinere, & actu priuato, in the law .1. and laſt. Graunt that I go thorough the fielde once, and agayne, and the thyrd tyme, bycauſe peraduenture the hyghe way is ſo foule, that a man can not paſſe thoroughe it. Whither, bycauſe I ſometymes go and returne thorough thy field, do I therefore get vntounto my ſelfe in it the right of dominion & ſeruitude? No: for I entended not with that mynde to go thoroughe thy field, but bycauſe I was of neceſſity compelled thereunto. In the decrees diſtinction the .1. chap. Conſuetudo: Cuſtome is ſaid to be a certain right, inſtituted by manners, whiche is taken for a law, when a lawe fayleth.What cuſtome is. When in the firſt tymes of the Churche, when tyrannes perſecuted Chriſtian religion, godly men thorough feare were cōpelled to aſſemble together in houſes and caues by night, and in the darke, thys aſſembly was by a certaine right & maner then inſtituted, counted lawful. But if we would, now that the Church is conſtituted, worſhyp God after the ſame maner, we ſhould both be derided & laughed at, & alſo it wer not to bee ſuffred. For they vſed not that manner, to the end they would hauehave it drawen into a cuſtome, or that it ſhould be an inſtitutiō which other men ſhould followe. Ambroſe beyng Catechumenus, that is, newly conuerted to the Chriſtian faith, and not baptiſed, was choſen Biſhop of Millan, and Nectarius of Conſtantinople and peraduenture other. Yet is it not lawfull for vsus now to followe the ſame cuſtome, and to elect a Biſhop, which neither hath ſeene ſacred ſeruices, nor hath ben waſhed with the water of Baptiſme. But they did ſo. They dyd ſo in deede, but compelled by neceſſity: bycauſe they had no other, which were both learned & endewed with authority, whō they might oppoſe againſt the Arriās.
So is that eaſely confuted,An anſwere to an example of Euſebius. whiche they are wont to bryng out of the Hyſtory of Euſebius, for the communicatyng vnderunder one kinde, that Serapion ſent a child, and commaunded the bread to be dipped in the wyne. I could in deede expounde that place otherwiſe: but at this tyme it ſhalbe ſufficiēt to ſay, that that was not therfore ſo done then, thereby to bring in a cuſtome which ſhould be imitated of others. Wherfore cuſtome is not made by examples, but by the aſſent, approbation, and inſtitution of the people. Otherwiſe ther are in many places dronkēnes and night robbynges. But theſe things, bicauſe they are not allowed of the people, as inſtitutions to be obſerued, hauehave not the power of a cuſtome.
And that the thing may the better be vnderſtand,An other definitiō of cuſtome. Hoſtienſis. I wil bring a definition of cuſtome, which I foūd in Hoſtienſis, in the title de Conſuetudine. It is an vſe (ſaith he) agreing with reaſon, allowed by the cōmon inſtitution of them that vſe it, whoſe begynnyng is tyme out of mynde, or whiche is by a iuſt tyme preſcribed and confirmed, ſo that it is by no contrary acte interrupted, but allowed with contradictory iudgement. This is (as he thinketh) a full definition. But in that he ſaith: That that vſe ought to be agreeing with reaſon, it is not ſufficient, but firſt it is to be ſayd, that it ought to agree with the worde of God, for that is to be counted for the chiefeſt reaſon. Afterward, it muſt be allowed by the inſtitution of the people: for as much as it is not ſufficient, that it be done ether raſhly, or of neceſſity, or for ſome other cauſe, but it ought alſo to be allowed by the aſſent and inſtitution of the people, and of whoſe beginnyng there is no mention, or that it is preſcribed by a iuſt tyme, and appoynted by the lawes, neither is interrupted by any contrary action. For if the iudge or prince ſhal geue iudgement agaynſt it, the cuſtome is broken, as it alſo happeneth in preſcriptiō, when a mā is caſt out of his poſſeſſiō, or ye matter is called into law, & the matter is in plead, the preſcription is broken. Alſo the allowyng of the contradictory iudgement ought to be had, that is, that when one part alledgeth the cuſtome, and an other part denyeth it, if it be pronoūced on the cuſtome ſide, that doth confirme it. But all theſe thynges, as I hauehave before ſayde muſt be reuoked vntounto the rule of the woorde of God.
A cuſtome that is burdenous to the Church is not to be ſuffred. Auguſtine.Now this onelyonly is to be added, whiche is had, Extra de Conſuet. chap. 1. that a cuſtome can not be ſuffred, if it be burdenous to ye Church. Auguſtine alſo cōplayned, that in his tyme were ſo many new ceremonyes & rites brought in, that the Church was greuouſly burdened, and the ſtate of Chriſtians, at ye tyme was nothing at all more tollerable then in the old tyme the ſtate of ye Iewes was. That alſo we laye agaynſt our aduerſaryes: that the Churche ſhould not be burdened. This is their owne lawe. Why do they not acknowledge their owne wordes? Theſe things hauehave I therfore mencioned that we might vnderſtand how firme an argument Iiphtah vſed of Preſcription, namely that the Iſraelites poſſeſſed that land .300. yeares: whiche is much more firme and of greater force, then if they had poſſeſſed it but .30. or .40. yeares. Now let vsus go to the other part of the chap. wherin Iyphtahs victory agaynſt the Ammonites is deſcribed.