The common places of the most famous and renowmed diuine Doctor Peter Martyr diuided into foure principall parts: with a large addition of manie theologicall and necessarie discourses, some neuer extant before. Translated and partlie gathered by Anthonie Marten, one of the sewers of hir Maiesties most honourable chamber.

Of Prescription and Custome.

7 We gather out of the historie of the Iud∣ges, that the right of prescription is no new thing, * 1.1 but hath béene planted in the harts of men by GOD himselfe: and for what cause it was found out, I will declare in few words. * 1.2 It may be, that a man vnwittinglie possesseth the goods of another man: as for example. There is an heire, which succéedeth him that is dead, & among his goods hée findeth some things, that were wrongfullie held of him, or kept in pawne, while he liued; which he not knowing of, possesseth all those things with a safe conscience: and thus ig∣norantlie & vnwittinglie he holdeth other mens goods in stead of his owne. What then? Shall the heire neuer séeke the iust possession thereof? If the right owner neuer make claime to his own, ought the ignorant to defraud the heire for euer, that he should neuer possesse it againe as his owne? Doubtles, if the owner doo neuer de∣mand againe that thing, it must be ascribed to his owne slouth, sluggishnes, and negligence. Wherefore in detestation of such slouthfulnes, in the fauour of good dealing, and lastlie for publike quietnes sake, the lawe of prescription hath béen deuised. This lawe did Iephtha vse against the Ammonites; * 1.3 We haue possessed this land (saith he) three hundred yeeres; wherefore doost thou then disquiet and trouble vs? Vnles there should be some certeine time prescribed, within which space, and not beyond, things may be claimed againe, the titles of all things would be vncer∣teine: which is excéedinglie repugnant to the affaires of men; wherefore this inconuenience is preuented by the right of prescription. * 1.4 And it is defined in the digests, De vsu capionibus, lawe the third; that it is a claime of dominion, through the continuance of possession, during the time appointed by the lawe. The definition is plaine and manifest. But at this daie they make a diffe∣rence betwéene prescription, and that which they call Vsucapio; when as neuertheles in the digests, among the old lawiers, there was put no diffe∣rence. These (so far as I remember) began first to be separated in the time of Antoninus Pius: * 1.5 so as Vsucapio takes place in things mooueable, and prescription in things immooueable. But thus much by the waie.

But in the historie of the Iudges it is to be noted, that Iephtha did wiselie place his argu∣ments: for he vsed not prescription in the first place, but before all things he obiected the lawe of armes; afterward the gift of the true God: and the cause being thus confirmed, at the last he vsed the right of prescription, bicause a conti∣nued possession dooth not by it selfe and alone pre∣scribe, but it hath néed of a good title, * 1.6 and of a good conscience. A good title is, that the thing be or∣derlie and lawfullie come by. For he that hath gotten anie thing by theft or robberie, although he haue long enioied the same; yet he may not

claime it by prescription: but if the title be good, the dealing plaine, and a continuance of time had withall, the prescription is firme and good. If we haue gotten anie thing, either by bar∣gaine, or by frée gift, or by inheritance, or by o∣ther like meanes, the title is good. But besides, there must be good dealing, whereby we may te∣stifie in our consciences, that no mans right is iniured, and that we knowe there is nothing that by iust meanes should let vs. Wherefore Iephtha had a good title, to wit, the law of armes, and the gift of God. He possessed it also by good dealing, for he was not guiltie either of fraud or of robberie, and therefore he verie well vsed the lawe of prescription.

But the time of prescription in things mooue∣able, is by our ciuill lawes, * 1.7 the space of thrée yeares; but in things vnmooueable, ten or twen∣tie yeares, if ignorance be not the cause thereof. For if the owner shall know the thing to be his, which another man possesseth, and yet so long holdeth his peace, he can not afterward demand it againe, and the lawe séemeth iustlie to punish such negligence. But if the owner shall not knowe of his interest, the time is deferred, namelie to thirtie or fortie yeares; and this is done, when there is no ignorance in the case, and that one possesseth for himselfe, and not for ano∣ther, otherwise it is no prescription. Howbeit, this we must consider by the waie, that the eccle∣siasticall rules touching prescription, doo differ from the ciuill lawes. For they (as we haue said) appoint thirtie yeares, although the possessor haue not dealt well; for they decrée, that fraud shall be no let vnto prescription. But as wée reade in the sixt De regulis iuris, in the chapter Possessor; A possessor which holdeth by ill dea∣ling, prescribeth not by length of time. For wée must haue respect to the word of God, and consi∣der with what conscience a man possesseth anie thing.

8 Now I thinke it fit to speake somwhat of cu∣stome, yet bréeflie, bicause the same hath some af∣finitie with prescription. And bicause our aduer∣saries make much adoo about that, and would vt∣terlie oppresse vs with customs, the same ought to be agréeable vnto reason, and be lawfullie pre∣scribed, as we haue it in the Extrauagants De consuet. the last chapter. The ciuill lawes assigne vnto custome the space of ten or twentie yeares, and the canons thirtie or fortie yeares: but most firme is that custome, * 1.8 whose beginning is time out of mind. And it ought to be taken for a sure rule, that whatsoeuer is repugnant to the word of God, doth by no meanes prescribe. And therefore, whereas the Papists doo pleade, that the Communion hath bin giuen to the laitie vn∣der one kind, by the space of four hundred or fiue hundred yeares, séeing that is manifestlie a∣gainst the word of God, they cannot prooue that it is prescribed by custome: for such a thing is not as (I may saie) prescriptible. For the verie which cause, they cannot alledge a custome prescribed, as touching the sole life of ministers. For euen at the first it was enforced by violence, and it is against the word of God. * 1.9 And yet Hostiensis saith, that The power of custome is so great, as it constreineth priests to sole life: In the distinct. 23. in the chapter Placuit. Howbeit, as the ciuill lawes decrée, * 1.10 That custome which contendeth ei∣ther with nature or publike right, is a naughtie custome. But that which I haue affirmed, hath foundation in the word of God. For when Christ said to the Pharisies; Yee hypocrites, why doo ye breake the commandements of God for your traditions sake? for God saith, Honor thy father and thy mother: but yee saie; Whoso shall saie to his father or mother; By the gift that is offered by me, &c. They might haue prescribed vnto him custome, but that was not lawfull in a thing quite contrarie to the word of God.

9 There was a custome in the region of Tau∣rus, to kill such as were strangers and ghests. Among the Persians, the custome was neuer to deliberate vpon graue and weightie matters in counsell, but in feasts and dronkennes. The Sau∣romates had a custome among their cups, that while they were drinking, they sold their daugh∣ters. These prescribe not, séeing it appeareth ma∣nifestlie, that they are naught and vicious: but that custome prescribeth, which is neither a∣gainst the word of God, nor the lawe of nature, nor yet the common lawe. For the right of cu∣stome commeth of the approbation, and still con∣sent of the people. For otherwise, why are wée bound vnto lawes, but because they were made, the people consenting and allowing of them? And this is onlie the difference betwéene cu∣stome and lawe, * 1.11 that there is a secret consent in the one, and an open consent in the other: where∣fore such customs cannot be reuoked without danger. Aristotle in his Politiks admonished, * 1.12 that Men which haue learned to doo things with the left hand, should not be constreined to vse the right; so that in things indifferent, and of no great importance, custom must be reteined still.

There is an old prouerbe, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, that is, Lawe and countrie. For euerie countrie hath certaine customs of his owne, which cannot easi∣lie be changed: but yet (as I said) when they im∣pugne the word of God, or nature, or common lawe, they doo not prescribe, for then they be not customes, but beastlie cruelties. It is well set foorth in the digests, De legibus & senatus consul∣tis, In the lawe De quibus: Custome without reason is of no force. And in the decrées, distinct, the eight, in the chapter Veritate, * 1.13 Augustine saith; When truth is tried out, let custome giue

place: let no man be so bold as to prefer cu∣stome before reason and truth. And in the next canon Christ said; I am the waie, the truth, and the life: * 1.14 he said not, I am custome. Cyprian in his epistle against the Aquarians saith; Let all custome, though neuer so ancient, giue place vn∣to truth. For otherwise Peter, when he was reprehended by Paule in the epistle to the Gala∣thians, * 1.15 might haue pleaded custom; but he rather assented, that custome should giue place vnto the truth. Cyprian in the same epistle against the Aquarians saith, that Custome without truth is but oldnes of error; and the more it is reteined, the more gréeuous it is. Wherfore let the Pa∣pists cease to brag of their customes, which be full both of error and vngodlines.

* 1.16 10 Moreouer, for establishing of a custome, it is not sufficient that some thing be done of som men, or that it be often doone; vnles it be so doone, that it be receiued into a vse and an ordinance to be obserued. For there be manie things doone either vnaduisedlie, or of necessitie; and yet we would not haue them to be drawne into a cu∣stome. In the digests De itinere & actu priuato, lawes the first and last: Admit I go through the field once, twise, or thrise; bicause the high waie perhaps is foule: in that I sometimes passe too and fro through thy grounds, doo I therefore get a right of lordship or seruice therein? No vere∣lie: neither was it my purpose to passe through thy field to anie such end, but I was compelled thereto of necessitie. In the decrées, distinction the first, in the chapter Consuetudo, custome is said to be a certeine right instituted by manners; * 1.17 which is taken for a lawe, where lawe it selfe fai∣leth. It is requisite, that this should be a lawe, and made for manners: especiallie in the first times of the church, when tyrants persecuted chri∣stian religion; & that godlie men, through feare, were driuen from house to house, & constrained to assemble togither in houses and secret places by night. * 1.18 But if we would now in these daies worship God after that maner, the church being setled; both we should séeme verie ridiculous and intollerable. For they did not so, to the intent they might drawe it vnto a custome, or that it should be an ordinance for others to followe.

Ambrose, when he was a nouice yet in the faith, was chosen bishop of Milan; so was Ne∣ctarius of Constantinople; * 1.19 and perhaps other: yet is it not lawfull for vs now to followe the same custome, and to choose a bishop, who neither hath béene conuersant in the holie mysteries, nor yet hath béene baptised; howbeit they did so: they did it in déed, but yet compelled of necessitie, bi∣cause they had not other men both of learning and credit, * 1.20 whom they might oppose against the Arrians. So is that easilie confuted, which they are woont to bring out of the historie of Eusebius, for communicating vnder one kind: namelie, that Serapion sent his boie, and bad him moist the bread in wine. Indéed I might expound that place otherwise; but it shall suffice for this time to saie, that it was not so doone then, to the intent a custome should be drawne thereof for others to followe. Wherefore custome is not made by ex∣amples, but by the assent, approbation, * 1.21 and ordi∣nance of the people: otherwise there are in manie places droonkennes, and riots by night; but sée∣ing these things are not allowed of the people, as ordinances to be kept, they haue not the force of custome.

11 And that the matter may the better be vnderstood, I will bring a definition of custome, * 1.22 which I found in Hostiensis, in the title De consu∣etudine; It is an vse (saith he) agréeable to rea∣son, and allowed by a generall ordinance of them that vse it, whose beginning is time out of mind; or else, which is by a iust time prescribed and con∣firmed, so that it be by no contrarie act inter∣rupted, but allowed by a * 1.23 contradictorie iudge∣ment. And this dooth Hostiensis thinke to be a perfect definition. But whereas he saith, that that vse ought to be agréeing with reason; that is not inough: but this ought first to be prefer∣red, that it must be agréeable to the word of God. For that is to be accounted for the chéefest rea∣son; and afterward let it be allowed by the insti∣tution of the people: for it is not sufficient, if something be doone either rashly, or of necessitie, or for some other cause; but it must also be allo∣wed by the assent and institution of the people, and that the beginning thereof be time out of mind, and that it be prescribed by a iust and de∣terminate time in the lawe, being not interrup∣ted by anie contrarie act.

* 1.24 For if a iudge or prince shall giue iudgment against custome, then custome is broken. As it also commeth to passe in prescription, when a man is cast out of his possession, or when a mat∣ter is called into sute of lawe, & the issue ioined, prescription is broken. Also the allowing of con∣tradictorie iudgement must be had, (that is, that when one part alledgeth the custome, and the o∣ther part denieth it) if sentence be giuen on the behalfe of custome, custome is confirmed. But all these things (as I said before) must be redu∣ced to the rule of Gods word. Onlie this séemeth now méet to be added, which is in the Extraua∣gants De consuetudine, * 1.25 chapter 1. that A custome cannot be suffered, if it be burdensome vnto the church. Also Augustine complained that in his time, there were such a number of new rites and ceremonies sprong vp, that the church was grée∣uouslie burdened, and that the state of christians at that time was nothing at all more tollerable, than in old time the state of the Iewes. The same exception doo we also take against our ad∣uersaries,

that the church should not be ouerbur∣dened. This is their owne lawe; why doo they not acknowledge their owne words?

* 1.26 12 Paule disputing in the third chapter of the epistle to the Romanes of the righteousnes of faith, added, that the same hath testimonie both of the lawe and of the prophets: which he there∣fore saith, bicause that the doctrine, which he set foorth, might séeme to be new and latelie sproong vp. * 1.27 But in the Gospell, newnes must speciallie be shunned, and therefore he testifieth in euerie place, that the Gospell is ancient, and was ordei∣ned of God from the beginning. And at the be∣ginning of the epistle, he wrote, that God pro∣mised the same by his prophets in the holie scrip∣tures. And at this daie, the controuersie betwéen vs & our aduersaries is, as touching doctrine; while they affirme, that we bring in new things, and that themselues doo cleaue fast to the anci∣ent doctrine. But we learne of the Apostle, how this cōtrouersie may be determined. * 1.28 Assured∣lie, that doctrine is old and ancient, which hath testimonie from the lawe and the prophets, that is, of the holie scriptures: but that shall be iud∣ged new, whereof there is no mention in them. They erect the Masse, * 1.29 where onlie one man doth communicate for others that doo stand by. This hath no testimonie in all the whole scriptures.

We affirme, that the supper of the Lord ought to be common vnto the faithfull; which is most manifestlie shewed by the institution thereof, as we haue it in the Gospels, and in Paule. These men deliuer vnto the laitie the sacra∣ment of Christes bodie, * 1.30 halfe maimed and vn∣perfect. This doubtles, they not onlie haue not out of the holie scriptures, but plainelie against the scriptures. They mainteine inuocations of the dead, which they are not able to confirme by the scriptures; They driue the cleargie from matrimonie; They defend purgatorie; They reteine images; They vse strange toongs in the diuine seruice, choise of meates and gar∣ments, shauings, annointings, and an infinite number of such like things they obtrude vpon vs, as necessarie to the woorship of God, and that altogither without testimonie of the scrip∣tures. Let them learne out of Paule, which min∣ding to teach the righteousnes that commeth by Christ, saith, that It hath testimonie of the law and the prophets, and not that it was deuised by himselfe. But the doctrine of these men aduan∣ceth impietie: for they bring in the inuentions of men, in stead of necessarie woorshipping of God; which hauing no testimonie out of the scriptures, * 1.31 must of necessitie be new.

And the reason why it behoueth in religion to beware of newnes, is; for that God comman∣deth in Deuteronomie, that none should either adde too, or take awaie anie thing from his cu∣stomes and commandements. Yea and Plato himselfe in his lawes and common-weale for∣bad, that nothing should be made new in things which belonged vnto religion. No doubt, * 1.32 but the lawes of men may be altered, bicause the fourme of a common-weale is sometimes al∣tered. Neither doo those lawes which serue for a kingdome, serue also for the gouernement of a Signiorie & a Common-weale of the vulgar people. Moreouer, séeing lawe-makers are but men, they cannot perceiue all things that should be done. And manie chances doo happen euer a∣mong, for the which it behooueth both to amend and change lawes. And as in arts, something hapneth in euerie age for the more perfecting of them: so lawes likewise now and then, by suc∣cesse of times are amended, and reduced to a better fourme. But none of these things takes place in the lawes of God. For as touching the Church, she altereth not hir fourme. * 1.33 It is al∣waies one manner of common-weale, and no∣thing is hidden from the vnderstanding of God the author of the lawes; he foreséeth all things, neither is his knowledge augmented by the successe of time. Wherefore there is no cause why men should attempt to alter anie thing in his word.

Notes

• * 1.1

  In Iud 11, verse. 12.
• * 1.2

  Why the law of pre∣scription was broght in.
• * 1.3

  Iudg. 11, 12.
• * 1.4

  A definiti∣on of pre∣scription.
• * 1.5

  The diffe∣rence be∣tweene pre∣scription & Vsucapio.
• * 1.6

  What is re∣quired vnto the lawe of prescriptiō.
• * 1.7

  The time required for prescrip∣tion.
• * 1.8

  The most firme cu∣stome for prescrip∣tion. No custome can pre∣scribe a∣gainst the law of God.
• * 1.9

  Hostiensis.
• * 1.10

  A naughtie custome that conten∣deth with 〈◊〉〈◊〉, or common right. Matth. 15, 3.
• * 1.11

  What is the difference betweene custome and lawe.
• * 1.12

  Aristotle.
• * 1.13

  Augustine.
• * 1.14

  Cyprian.
• * 1.15

  Gala. 2, 14.
• * 1.16

  What deth establish custome.
• * 1.17

  What is cu∣stome.
• * 1.18

  Secret mee∣tings.
• * 1.19

  Ambrose being Ca∣techrime∣nus was chosen bi∣shop. ••o was Nectarius.
• * 1.20

  An answer vnto the ex∣ample of Eusebius.
• * 1.21

  Custome is not made by exam∣ples, but by approba∣tion of the people.
• * 1.22

  Another definition of custome. Hostiensis.
• * 1.23

  That is, when one part alled∣geth cust∣stome, and the other denieth it, if sentence be giuen on the behalfe of custome, the same custome is confirmed.
• * 1.24

  Note.
• * 1.25

  A custome burdensom vnto the church must be reiected.
• * 1.26

  In Rom. 3, verse. 21. Rom. 1, 2.
• * 1.27

  Newnes must be re∣mooued from the Gospell.
• * 1.28

  What doc∣trine is old, and what is new.
• * 1.29

  The popish is new, for that it hath no testimo∣nie of the scriptures.
• * 1.30

  Matt. 24, 26. 1. Cor. 11, verse. 24.
• * 1.31

  The reason why new∣nes in reli∣gion must be auoided. Deut. 12, 32.
• * 1.32

  Mens laws may bee changed.
• * 1.33

  The out∣ward go∣uernment of the church altereth not the fourme.