The Hartlib Papers

to the shakinge of our triple fowndation) to judge of suche prerogatiues &priuiledges as the King &Lords eyther haue noe right to or muste acknowledge themselfues to haue receiued from the Peoples consente; And synce the People, neyther, haue vsed, nor (in truthe) can, expresse themselues but by suche a representatiue as wee vsually call the House of Commons, (thowgh perhaps, somewhat varied in some. more equitable principles of in the points of of election, vote et cæt) it muste therefore necessary followe that the King &Lords muste haue receiued, &muste still holde, those rights &priuiledges they clayme, eyther by the swoorde, &in that case, yf the Spaniarde come in vpon ayghty ayght wee may (yf wee can) driue him out upon 89:; or by a Lawe made by the immediate representatiue of the People, &then Eius est interpretari cujus est condere;   Those withe whome I haue lately had frequente dispute <in this uery point>, seeinge themselues gone in the forementioned wayes of raysinge a right to the King &Lords && haue therefore &doe still indeauor to set vp <a third way wch they call> prescription that soe <in> what<ere> they cannot maintaine <theire positions> by the lyght of truthe &reason they may yet loose theire opponents in that darke &bottomeles pit of prescription where noe rationall meanes of huntinge &serchinge the truthe can be vsed; Vpon this grownde they allowe the Grande Signior a full

right to be absolute Lord of of all his subjectes liues, &to be heyre &excecutor to all theire landes &goods; Vpon this grownde they allowe our nayghbor Christian Turcke (I meane the Frenche King) vpon 180: yeers prescription, (a little before that time the Parliament of France set Tutors ouer one of the wisest of theire Kings) to sende the Ianizaries of his garde for any mans goods or or life, &truly soe zealous are they of in the maintaininge of this invention; & as I beleeue so that many on that side, the good honeste husbands as well as theire wiues wowlde be very [letters deleted] well contented, that (for the melioratinge of the race of theire family) the his Majesty wowlde vse his right of prescription, in bestowinge what he can spare of his royall bloode vpon theire wiues, &thus wee showlde haue greate store of Princes;    nowe to bringe them backe againe out this dark dungeon of theire owne invention, the beste way that I haue fownde is (&suche as haue proued sufficiente) to consider the nature of that thinge which wee call prescription; &in what cases it operates; And accordinge to that little skill I haue in the Lawe (for there can be noe suche thinge thinge as prescription in nature) prescription is a right which a man claimes to some thinge which belon can belonge to noe particular man by the Lawe of nature, &this plea is that the thing he claimes beinge <is> suche as can <appropriately> belonge to noe man by the Lawe of nature, &that himselfe &his Ancestors haue beene soe longe posseste of it as that noe memory of man ord or record can shewe the contrary; Vpon this

grownde I hold it to be Lawe, that where any man is possessed of a peece of lande &noe memory or recorde can see shewe that any other, was euer posseste of it, the this man is (not by nature but by prescription) the true owner of it &yf by a nayghbour or the nayghborhoode, prescribe to a way throwgh this lande, the plea will holde goode excepte the other which hathe the lande can (by good euidence) proue that at suche at time ¬ before the way began to be vsed, &the grownde of the Lawe is that what tilt title prescription giues one to the Lande it giues the other to the way throwgh the Lande, &neyther of the lande nor the way beinge suche thinges as were (by the Lawe of God or nature) appropriated to any indiuiduall person or persons, there may be a title made to them by prescription; Hauinge (I conceiued) cleared this pointe that prescription (in the nature [deleted word] &firste humane constitution of it) was not set invented &set vp with intente that it showlde stande &operate againste any Lawe, muche lesse againste firste &hygeste of all Lawes, the Lawe of nature; it muste nowe necessary followe that, (in case <eyther> where there hathe beene an interruption of the possession, or where the thinge in question is suche as belongs vnto (by the Lawe of nature) equally to all the sonnes of Adam) there cannot be a title made by prescription; I shall (for the presente) waue that of interruption of possession

thowgh (I conceiue) that our records of Edward &Richard the seconde cannot be denied, nor were the then Parliament other then suche as from which we holde to this day, as good (I meane as stronge) lawes as any wee haue By the way I shall onely obserue that suche Parliaments as deposed Kings cowlde allsoe at the say same time make good Lawes; But to returne to my game; Yf prescription (as hathe beene shewed) cannot be stande againste the Lawe of nature, wee muste then returne to the Lawe Positiue, I meane that Lawe to which (in all politicall coalitions) euery indiuiduall person, eyther mediately or immediately, dothe or showlde giue his consente; The case then standing thus thus, that euery man is wholy free by nature, &soe noe right to this his freedome but by his owne consente; It muste necessary followe that (euery Indiuiduall man beinge (by nature) put into the possession of this his naturall freedome) yf nowe any man will lay claime to this it   he this his nayghbors liberty, it will concerne him to v shewe &proue that Lawe or consente by which he claimes; &synce the this Lawe &consente was ma cowlde not be made but by the other, the interpretation of it &dispencinge of justice by it muste of necessity belonge to that other vpon that rule Eius est condere et cæt; And thus haue I browght the Peoples judgemente to be, as the begginning soe the finall determination of all politicall questions; And yf nowe it be asked what power the King hathe to make a Lorde or what

title eyther haue to a negatiue (in raysinge of et mony or et cæt) ouer 10000000 of people; it may truly be answered that the people &theire Ancestors, (as sonnes of Adam) were (by nature) free from eyther King or Lord (nature made noe suche creatures) &that this theire naturall inherente [letters deleted] liberty cowld not be taken of &cannot be claimed from them but by theire owne consente; And yf therefore the King &Lords will continue theire claime <to these negatiues> they muste not onely proue this consente of the People, but it muste be done before them that made the Lawe, For still the rule holdes Eius est condere etcæt; And by this or some like principles the will the fowles of the Ayre be called to that feaste where the Fleshe of Kings &nobles shall be the foode