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 the fountains of honour, they proceed to make them also the fountains of property; and for proof of this allege, that all lands, tho 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 propriety, must prove that he had it in himself. I confess, that the kings of Spain and 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 dependence, 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 'tis 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. [1] Tho 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 Britains 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, [2] or, as William of Malmesbury says, three hundred principal men of the British nobility, [3] 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 incens'd the Britains by the favour he shew'd them, as much as by the worst of his vices. And certainly 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 tho 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 conquer'd. 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 suffer'd 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 'tis 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 'tis 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, that the nature and intention of it may appear. 2. To the second: If it be said that records testify all grants to have been originally from the king; I answer, that tho it were confessed (which I absolutely deny, and affirm that our rights and liberties are innate, inherent, and enjoy'd 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, tho 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 kings: And if no such thing do appear, the proceedings of one or more kings as if they had it, can be of no 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 enquire for truth ought not to deny or conceal anything, 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, avoyer or bailiff in every free town of Holland, Germany or Switzerland, sign the publick acts that pass in those places. The dukes of Venice and Genoa do the like, tho 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, tho the words mero motu nostro[4] 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 tyrants of the East and other barbarians whose power is most absolute, speak in the single number, as appears by the decrees of Nebuchadnezzar, Cyrus, Darius and Ahasuerus recited in Scripture, with others that we hear of daily from those parts: but wheresoever there is anything of civility or regularity in government, the prince uses the plural, to shew that he acts in a publick 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 themselves; they speak not in their own persons, but as representing their people; and a king who is depriv'd of his kingdom loses the right of sending ambassadors,[5] because he can no longer speak for those, who by their own consent, or by a foreign force, are cut off from him. The question is not whether such a one be justly or unjustly deprived (for that concerns only those who do it or suffer it) but whether he can oblige the people; and 'tis 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 tho 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 publick, 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 'tis 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 publick 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 repay'd, and the lands resumed.

[1] Mat. Westm. Flor. Hist. [Wendover, Flowers of History (for year 449), vol. 1.

[2] Ibid. [for year 461.]

[3] [Malmesbury, Chronicle of the Kings of England, bk. 1, ch. 1.]

[4] [By our will alone.]

[5] Rex regno exutus, jus legandi amittit. Grot. De jur. bell. [Grotius, De jure, bk. 2, ch. 18, sec. 2.]

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