Commentaries, Commentary on Judges · Chapter 11 · Excursus 4
¶Of Preſcription.
Why the lawe of preſcription was brought inHEreby we gather that the right of preſcription is no newe thing, but a thing grafted of God hymſelfe in the hartes of men.
But why it was founde out, I wyll in fewe woordes declare. It may be, that a man may poſſeſſe an other mans thing vnwittinglye. As for example: There is an heyre whiche ſucceedeth him that is deade, and among hys goodes he findeth ſomethinges that were vſurped by the former, while he lyued, or receaued for a pledge, which he being ignoraunt of, poſſeſſeth all thoſe things with a good mynde. And ſo being ignoraunt and vnwitting, poſſeſſeth an other mans thing as his owne. What then? ſhal the heyre neuer ſeeke for the iuſt poſſeſſion thereof? If the true owner doo neuer require his thing, ought the ignoraunt to defraude the heyre for euer, that he ſhoulde neuer poſſeſſe againe that thing as hys owne? For if the owner neuer demaunde hys owne thing againe, that is to be aſcribed vntounto his owne ſlothe and ſlouggiſhe negligence. Wherefore in deteſtacion of ſuche ſlouggiſhnes, and in commendacion of an vprighte fayth, and laſtly for publike peace ſake, the lawe of preſcription was found out. Iiphtah nowe vſeth thys lawe agaynſt the Ammonites.
We ſaith he, hauehave poſſeſſed thys land this three hundred yeares. Why then doeſt thou make this garboyle and tumult agaynſt vsus? Except ſome certayne time were appointed, within the ſpace whereof, and not beyonde, thinges myght be demaunded agayne, the poſſeſſion of all thinges ſhould be vncertaine: but from that humane thinges doth wonderfullye abhorre. Wherefore this euyll is remedyed by the right of preſcription.The difinition of preſcription. And it is defined in the Digeſtes de vſucapionibus, law .iii. that it is an addiction or claime of dominion by continuacion of poſſeſſion, by the time appointed by the lawe. The difinition is plaine and manifeſt. But in theſe daies they make a difference betwene preſcription and vſucapione, when yet in the Digeſtes, and among the olde Lawyers they wer not ſeperated.
In the tyme of Antonius Pius (as I remember) theſe beganne fyrſt to bee ſeperated, ſo that vſucapio taketh place in thinges moueable,What differēce is betwene preſcription and vſucapio. and preſcription in thinges vnmoueable. But thus much by the way. But in our hiſtorye this is to be marked, that Iiphtah doth wiſely deuide his argumentes: for he doth not firſt place the lawe of preſcription, but before all thinges hee obiecteth the right of warre, afterward the gift of the true God: and his cauſe beyng ſo confirmed, at the laſt he vſeth the lawe of preſcription. And that hee doth therefore, bicauſe a poſſeſſion continued, doth not by it ſelfe and alone preſcribe:What thynges are required to the right of preſcription. but it hath neede of a good title, and an vpright faith. A good title is, that the thing bee gotten by right order and lawfull manner. For he that hath gotten anye thing by theft or rapine, although he hauehave long poſſeſſed it, yet it preſcribeth not. But if both the title be good, and his faith vpright, and continuance of tyme bee added, the preſcription is firme and good. If we hauehave gotten any thing, eyther by bying, or by gift, or by inheritaunce, or ſuche lyke wayes, the tytle is good: but farther wee hauehave neede of an vpright fayth, whereby we are aſſured in our ſelues, that no mans right is iniured, and that we know that there is nothing which maye by iuſt meanes let vsus. Wherefore Iiphtah hath a good tytle, the ryght of warre, and the gyft of God. He poſſeſſeth alſo with an vpryght fayth, bycauſe hee meaneth neyther fraude nor rapine. Wherefore he very well vſeth the lawe of preſcription.
But the tyme of preſcription in thinges moueable,Of the tyme of preſcription. is as touching our ciuill lawes three yeares: but in thinges vnmoueable, tenne or twentye yeares, if ignoraunce happen not. For if the owner knowe that it is his owne thyng which is poſſeſſed of an other, and he hold his peace ſo long, hee cannot afterwarde demaunde it againe. And the lawe ſeemeth iuſtlye to puniſhe ſuche negligence. But if the owner be ignoraunt, the tyme is farther proroged, namely to thirtye or fortye yeares. And this is done when ignoraunce happeneth, and that he poſſeſſeth it for himſelfe, and not for an other: otherwyſe it is no preſcription. Howbeit thys we muſt knowe by the waye, that the Eccleſiaſticall Canons, as touching preſcription, doo differ from the ciuill lawes. For they, as we hauehave ſayde, doo appoynt thirtye yeares, though the poſſeſſor be of an euyll fayth. For they determine that euyll faythe cannot let preſcription. But as it is had in the .vi. De regulis iuris, chapter Poſſeſſor. A poſſeſſor of an euil faith, preſcribeth by longnes of tyme. For we ſhould hauehave a reſpect vntounto the woorde of God, and wyth what conſcience a man may poſſeſſe any thing. Theſe thinges hauehave I alledged, that we might vnderſtand, how Iiphtah vſeth the law of preſcription.