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are innate, inherent, and enjoyed time out of mind, before we had kings) it could be nothing to the question, which is, concerning reason and justice; and, if they are wanting, the defect can never be supplied by any matter of fact, though never so clearly proved. Or, if a right be pretended to be grounded upon a matter of fact, the thing to be proved is, that the people did really confer such a right upon the first, or some other, king: and, if no such thing do appear, the proceedings of one or more kings, as if they had it, can be of no other value. But in the present case, no such grant is pretended to have been made, either to the first, or to any of the following kings; the right they had not, their successors could not inherit, and consequently cannot have it, or, at most, no better title to it than that of usurpation.

But, as they who inquire for truth, ought not to deny or conceal any thing, I may grant that manors, &c. were enjoyed by tenure from kings; but that will no way prejudice the cause I defend, nor signify more, than that the countries which the Saxons had acquired, were to be divided among them; and, to avoid the quarrels that might arise, if every man took upon him to seize what he could, a certain method of making the distribution was necessarily to be fixed; and it was fit, that every man should have something in his own hands, to justify his title to what he possessed, according to which controversies should be determined. This must be testified by somebody, and no man could be so fit, or of so much credit, as he who was chief among them; and this is no more than is usual in all the societies of the world. The mayor of every corporation, the speaker or clerk of the house of peers, or house of commons, the first president of every Parliament, or presidial in France; the consul, burgermaster, advoyer, or bailift, in every free town of Holland, Germany, or Switzerland ; signs the public acts, that pass in those places. The dukes of Venice and Genoa, do the like, though they have no other power, than what is conferred upon them, and, of themselves, can do little or nothing. The grants of our kings are of the same nature, though the words “ mero motu nostro" seem to imply the contrary; for kings speak always in the plural number, to shew that they do not act for themselves, but for the societies over which they are placed ; and all the veneration that is, or can be, given to their acts, does not exalt them, but those from whom their authority is derived, and for whom they are to execute. The tyrant of the East, and other barbarians, whose power is most absolute, speak in the single number, as appears by the de. crees of Nabuchodonosor, Cyrus, Darius, and Ahasuerus, recited in scripture, with others, that we hear of daily from those parts : but, wheresoever there is any thing of civilty or regularity in government, the prince uses the plural, to shew that he acts in a pub. lic capacity. From hence, says Grotius, the rights of kings to send ambassadors, make leagues, &c. do arise:* the confederacies made by them do not terminate with their lives, because they are not for

• De jur. bell.

themselves; they speak not in their own persons, but as representing their people : and *“ a king who is deprived of his kingdom, loses the right of sending ambassadors,” because he can no longer speak for those, who, by their own consent, or by a foreign force, are cut off fronı him. The question is, not whether such a one be justly or unjustly deprived (for that concerns only those who did it, or suffer it) but whether he can oblige the people; and it is ridiculous for any nation to treat with a man that cannot perform what shall be agreed, or for him to stipulate that which can oblige, and will be made good, only by himself.

But, though much may be left to the discretion of kings, in the distribution of lands, and the like, yet it no way diminishes the right of the people, nor confers any upon them, otherwise to dispose of what belongs to the public, than may tend to the common good, and the accomplishment of those ends, for which they are entrusted. Nay, if it were true, that a conquered country did belong to the crown, the king could not dispose of it, because it is annexed to the office, and not alienable by the person. This is not only found in regular mixed monarchies (as in Sweden, where the grants made by the last kings have been lately rescinded by the general assembly of estates, as contrary to law) but even in the most absolute, as in France, where the present king, who has stretched his power to the utmost, has lately acknowledged, that he cannot do it; and, according to the known maxim of the state, that the demesnes of the crown, which are designed for the defraying of public charges, cannot be alienated, all the grants made within the last fifteen years have been annulled; even those who had bought lands of the crown have been called to account, and the sums given, being compared with the profits received, and a moderate interest allowed to the purchasers, so much of the principal as remained due to them has been repaid, and the lands resumed.

* Rex regno exutus, jus legandi amittit. Grot.

SECTION XXX.

HENRY THE FIRST WAS KING OF ENGLAND BY

AS GOOD A TITLE AS ANY OF HIS PREDECES.

SORS OR SUCCESSORS.

Having made it appear, as I suppose, that the ancient nobility of England was composed of such men as had been ennobled by bearing arms in the defence or enlargement of the commonwealth; that the dukes, earls, &c. were those who commanded them; that they and their dependants received lands for such services, under an obligation of continuing to render the like, and according to their several degrees and proportions, to provide and maintain

horses, arms, and men, for the same uses; it cannot be denied, that they were such gentlemen, and lords of manors, as we now call commoners, together with the freeholders, and such as in war were found most able to be their leaders. Of these the micklegemots, wittenagemots, and other public assemblies, did consist; and nothing can be more absurd than to assign the names and rights of duke, earl, and viscount, which were names of offices, to those who have not the offices, and are no way fit for them. If our author, therefore, had said, that such as these, who had always composed the great councils of our nation, had, in favour of Henry the First, bestowed the crown upon him, as they had done upon his father and brother, I should agree with him : but it is the utmost extravagance to say, that he, who had neither title nor possession, should give the power to those who had always been in the possession of it, and exercised it in giving to him whatsoever he had. But I most wonder that he should so far forget himself, as to call this Henry a usurper, and detract from the validity of his acts, because he had no title; whereas there neither is, was, nor can be, a usurper, if there be any

truth in his doctrine: for he plainly tells us, we are only to look to the power, and not at all to the means and ways, by which it is obtained; and, making no difference between a king and a tyrant, enjoins an equal submission to the commands of both. If this were only a slip of his pen, and he really did take this Henry to be a usurper, because he had not a good title, I should desire to know the marks by which a lawful king is distinguished from

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VOL. III.

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