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press the same power, neither received from, nor limitable by, kings; who are always said to be chosen, or made, and sometimes deposed, by them. William the Norman found and left the nation in this condition ; Henry the Second, John, and Henry the Third, who had nothing but what was conferred upon them by the same clergy and people, did so too. Magna charta could give nothing to the people, who, in themselves, had all ; and only reduced into a small volume, the rights which the nation was resolved to maintain ; brought the king to confess, they were perpetually inherent, and time out of mind enjoyed, and to swear that he would no way violate them: if he did, he was, “ipso facto,” excommuni. cated; and, being thereby declared to be an execrable, perjured person, they knew how to deal with him. This act has been confirmed by thirty parliaments; and the proceedings with kings, who have violated their oaths, as well before as after the time of Henry the Third, which have been already mentioned, are sufficient to shew, that England has always been governed by itself, and never acknowledged any other lord than such as it thought fit to
THE KING WAS NEVER MASTER OF THE SOIL.
Those who, without regard to truth, resolve to insist upon such points, as they think may serve their designs, when they find it cannot be denied, that the powers before-mentioned have been exercised by the English, and other nations, say, that they were the concessions of kings, who, being masters of the soil, might bestow parcels upon some persons, with such conditions as they pleased, retaining to themselves the supreme dominion of the whole ; and, having already, as they think, made them fountains of honour, they proceed to make them also the fountains of property; and, for proof of this, alledge, that all lands, though held of mean lords, do, by their tenures, at last result upon the king, as the head from whom they are enjoyed. This might be of force, if it were true : but matters of the highest importance requiring a most evident proof, we are to examine, first, if it be possible ; and in the next place, if it be true.
1. For the first; no man can give what he has not. Whoever, therefore, will pretend, that the king has bestowed this property, must prove, that he had it in himself. I confess that the kings of Spain and VOL. III.
Portugal obtained from the Pope grants of the territories they possessed in the West-Indies; and this might be of some strength, if the Pope, as vicar of Christ, had an absolute dominion over the whole earth ; but if that fail, the whole falls to the ground, and he is ridiculously liberal of that which no way belongs to him. My business is not to dispute that point; but, before it can have any influence upon our affairs, our kings are to prove, that they are lords of England
upon the same title, or some other equivalent to it. When that is done, we shall know upon whom they have a dependance, and may at leisure consider, whether we ought to acknowledge, and submit to, such a power, or give reasons for our refusal. But, there being no such thing in our present case, their property must be grounded upon something else, or, we may justly conclude they have none.
In order to this, it is hardly worth the pains to search into the obscure remains of the British histories : for when the Romans deserted our island, they did not confer the right they had (whether more or less) upon any man, but left the enjoyment of it to the poor remainders of the nation, and their own established colonies, who were grown to be one people with the natives. The Saxons came under the conduct of Hengist and Horsa, who seem to have been sturdy pirates; but did not (that I can learn) bear any characters in their persons, of the so much admired sovereign majesty, that should give them an absolute dominion or propriety, either in their own country, or any other they should set their feet upon.
They came with about a hundred men ; and, chusing rather to serve Vortigern, than to depend upon what they could get by rapine at sea, lived upon a small proportion of land, by him allotted to them.* Though this seems to be but a slender encouragement, yet it was enough to invite many others to follow their example and fortune; so that their number increasing, the county of Kent was given to them, under the obligation of serving the Britons in their wars. Not long after, lands in Northumberland were bestowed upon another company of them, with the same condition. This was all the title they had to what they enjoyed, till they treacherously killed four hundred and sixty, or, as William of Malmsbury says, three hundred principal men of the British nobility, and made Vortigern prisoner, who had been so much their benefactor, that he seems never to have deserved well, but from them, and to have in. censed the Britons by the favour he shewed them, as much as by the worst of his vices. And, cer. tainly, actions of this kind, composed of falsehood and cruelty, can never create a right, in the opinion of any better men than Filmer and his disciples, who think that the power only is to be regarded, and not the means, by which it is obtained. But, though it should be granted, that a right had been thus acquired, it must accrue to the nation, not to Hengist and Horsa. If such an acquisition be called a conquest, the benefit must belong to those that conquered. This was not the work of two men; and those who had been free at home, can never be thought to have left their own country, to fight as slaves, for the glory and profit of two men, in another. It cannot be said, that their wants compelled them ; for their leaders suffered the same, and could not be relieved, but by their assistance ; and whether their enterprize was good or bad, just or unjust, it was the same to all: no one man could have any right, peculiar to himself, unless they who gained it did confer it upon him : and it is no way probable, that they, who, in their own country, had kept their princes within very narrow limits, as has been proved, should resign themselves, and all they had, as soon as they came hither. But we have already shewn, that they always continued most obstinate defenders of their liberty, and the government to which they had been accustomed; that they managed it by themselves, and acknowledged no other laws than their own. Nay, if they had made such a resignation of their right, as was necessary to create one in their leaders, it would be enough to overthrow the proposition ; for it is not then the leader that gives to the people, but the people to the leader. If the people had not a right to give what they did give, none was conferred upon the receiver; if they had a right, he that should pretend to derive a benefit from thence, must prove the grant,
* Mat. West. Flor. hist