English Constitutional History from the Teutonic Conquest to the Present Time

V. Liberty of the Press.

The Censorship-The Press under James I. and Charles I.-The first

Newspaper, the Weekly News, in 1623--Continuance of the Censorship

under the Commonwealth-Milton's Areopagitica-Licensing Act,

1662-To publish anything concerning the Government is declared

criminal by the Judges-Unofficial newspapers stopped-Their

place supplied by the Coffee-houses and News-letters-Licensing Act

Revived, 1685-Finally expired, 1695-The press theoretically free,

but still subject to restraints- Stamp Duty on Newspapers—The

"Six Acts,' 1819-Law of Libel-No. 45 of the North Briton-

Apprehension of Wilkes and Others on a General Warrant-Leach v.

Money, 1765-General Warrants declared illegal-Entick v. Carring-

ton-Seizure of Papers under General Search-Warrant-Junius's

Letter to the King, 1769-Strained interpretation of Law of Libel-

Trial of Woodfall for Publishing the Letter to the King, 1770-Dean

of St. Asaph's case, 1779-Stockdale's case, 1789-Mr. Fox's Libel

Act, 1792-Reactionary period in growth of Liberty of Opinion,

1792-1832-Lord Campbell's Libel Act, 1843-Freedom of the Press

completely established-Conclusion

PP. 594-605

INDEX

pp. 605-639

CONSTITUTIONAL HISTORY.

CHAPTER I.

FROM THE TEUTONIC CONQUEST OF BRITAIN TO THE
NORMAN CONQUEST OF ENGLAND.

THE first step in a history of the Institutions of the English people Origin of the is to determine the elements of the English nationality. It is not English. unusual to speak of the English as a mixed race formed out of the fusion of the Britons, the Anglo-Saxons, the Danes, and the Normans; but this form of expression is apt to convey an erroneous idea of the facts. No modern European nation is, indeed, of pure unmingled race; yet in all some one element has maintained a clear and decided predominance. In the English people this predominant element is the German or Teutonic. The Teutonic conquest of Britain was something more than a mere Teutonic conquest of the country: it was in all senses a national occupation, a sustained immigration of a new race, whose numbers, A.D. 450during a hundred and fifty years, were continually being augmented by fresh arrivals from the Fatherland.1

Before the end of the sixth century, the Teutonic invaders had established a dominion in Britain, extending from the German Ocean to the Severn and from the English Channel to the Firth of Forth. The Britons were soon driven into the western parts of the island, where they maintained themselves for a time in several small states. The remnant of the country which they retained was indeed at first of considerable extent, including not only

1 [Cf. Tacitus, Agricola, cap. 28, Cohors Usipiorum per Germanias conscripta et in Britanniam transmissa." It is possible that from this expedition a knowledge of Britain may have found its way to the north of Germany. ED.]

2 [Cf. Lappenberg, "Geschichte von England" (1834), i. 122; Gneist, Hist. of the English Constitution (1891), p. 2 et seq.; and Hannis Taylor, The Origin and Growth of the Engl. Constitution (1900) for the " Teutonic theory."-ED.]

conquest of

Britain,

600.

No general commixture of Races;

or of Institu

tions.

Roman Law.

modern Wales but the great Kingdom of Strathclyde, stretching from Dumbarton to Chester, together with Cornwall, Devon, and part of Somerset. But the eastern boundary of this territory yielded more and more to the influence of the invaders; and it was only in the mountains of Wales and Cumbria that the Britons preserved for any length of time their ever-decreasing independence. During the long-continued and peculiarly ferocious series of contests between the natives and invaders, vast numbers of the flower of the British race perished. Many Britons sought refuge in emigration to the Continent. Not a few of the less warlike doubtless remained as slaves to the conquerors, and a still greater infusion of the Celtic element may have been effected by the intermarriages of the victors with the women of the vanquished. But the Germanic element has always constituted the main stream of our race, absorbing in its course and assimilating each of the other elements. It is "the paternal element in our system natural and political."2 Since the first immigration, each infusion of new blood has but served to add intensity to the national Teutonic element. The Danes were very closely allied in race, language, and institutions to the people whom they invaded; and the Normans, though speaking a different language, and possessing different political and social institutions, were yet descended from a branch of the same ethnic stock.

But whatever be the proportion in which the various national elements have coalesced, it is certain that the principles of our Constitution are in no wise derived from either Celt or Roman. The civilisation of the Romans, for the most part, departed with them. The Roman law disappeared for a time from the judicial

1 This hypothesis is strengthened by the fact that the few words in our language which have been retained from the original Celtic (about thirtytwo in number, excluding proper names) have all relation to inferior employments, and for the most part apply exclusively to articles of feminine use or to the domestic occupations of women. (See a list of these words, made by the late Mr. Garnett, in Transactions of the Philological Society, vol. i. p 171.) On the other hand, the tribal or family organisation of the Germans and the peculiar honour given to women among them, point to the strong improbability of any general amalgamation through intermarriage. The Britons also were long adverse to such an admixture. See Stubbs, Const. Hist., i. 62.

2 Stubbs, Select Charters, Introductory Sketch, p. 3. See also Archdeacon Squire, Anglo-Saxon Government in Germany and England (1745); Freeman, Norm. Conq., vol. i; and Stubbs, Const. Hist., vol. i. The arguments in favour of the opposite theory, of the permanence of the British race, are very ably stated by Mr. L. O. Pike in his "Origin of the English. Mr. Coote, in his Romans of Britain (1878), also maintains the permanence of the population of Britain, but then he affirms that the greater part of the island was occupied by a Belgic race, who began to settle here before the invasion of Julius Cæsar, and that these Belgians were Teutonic.

3 Mr. Coote (Romans of Britain) has ably urged all that can be said for a more complete survival of the Roman civilisation, "sheltered in the ark of the cities."

system of our country. After the conversion of the English to Christianity, however, it must indirectly have exercised considerable influence on Anglo-Saxon jurisprudence, through the medium of the dignified ecclesiastics who in Witenagemot and Shiremot took so large a part in the making of laws and the administration of justice. Directly, also, it was re-introduced from the Continent, in the twelfth century, as a consequence of the revived study of Jurisprudence which had there taken place. In the year 1149, Vacarius, a distinguished Lombard jurist, who had been invited to England by Archbishop Theobald, established a school of Civil Law at Oxford, and publicly taught the Roman jurisprudence to a numerous and eager band of students, for whose use he wrote his Summa, consisting of annotated extracts from the Digest and the Code. Although Vacarius was soon silenced by King Stephen, the impulse which he had given to the study of Roman law was not arrested. The socalled Leges Henrici Primi (written probably in the early part of Henry II.'s reign) contain many extracts from the Theodosian Code or the Breviarium; and the legal treatises of both Glanvill and Bracton, the latter especially, are strongly marked by a large infusion of Roman principles and terminology. As a system, however, the Roman law was soon rejected in England; but some of its forms, and many of its principles, were absorbed into and amalgamated with the system which our own courts of justice had been gradually developing for themselves out of the

1 L'Eglise défendit pied à pied le terrain de la société romaine; elle en fut, sous le gouvernement politique des barbares, la représentation éclairée et courageuse; elle en recueillit, elle en protégea la gloire passée. C'est à elle principalement qu'est due la conservation de ce droit admirable, qui partage encore aujourd'hui avec le Christianisme la domination morale chez les peuples civilisés. Thierry, Tableau de l'Empire Romain, p. 359; [but cf. Lappenberg, i. 163, and Gneist, Hist. Engl. Const., p. 9, note, the small influence exercised by the Roman Ecclesiastical law. . the weakened influence of Rome upon the princes of the realm."-Ed.]

2 Gervas. Dorob. (Decem Script., col. 1665), in describing the strife between Theobald, Archbishop of Canterbury, and the Papal Legate, Henry Bishop of Winchester, says: Oriuntur hinc inde discordiae graves, lites et appellationes antea in auditae. Tunc leges et causidici in Angliam primo vocati sunt. Quorum primus erat Magister Vacarius. Hic in Oxonfordia legem docuit." Robertus de Monte is the authority for the date, 1149, and for his compilation of nine books from the Code and Digest qui sufficiunt ad omnes legum lites quae in Schola frequentari solent decidendas."

3 Vacario nostro indictum silentium, sed Deo faciente, eo magis virtus legis invaluit quo eam amplius nitebatur impietas infirmare. Joh. Sarisb., Polycraticus, lib. viii. c. 22.

4 Of Bracton the entire form and a third of the contents were directly borrowed from the Corpus Juris" (Sir H. S. Maine, Anc. Law, p. 82). Bracton was largely indebted to Azo's Summa on the Code and Institutes of Justinian (Savigny, Geschichte des Römischen Rechts, iv. 538 seq.). Sir Travers Twiss, in the Introductions to the several volumes of his new edition of Bracton, has thrown fresh light on the dates and incidents of the legist's career.

Germanic origin of English institutions.

Ancient German polity.

primitive national usages. Our language, and the main outlines of our political and judicial institutions, are all inherited from our Teutonic ancestors; each has undergone a spontaneous development during the course of centuries, each has assimilated new elements; but the national identity of race, language, and institutions has never ceased to exist.1

The germs of our present constitution and laws must, therefore, be sought in the primeval institutions of the first Teutonic immigrants. Of these institutions we have little positive knowledge. According to Bede, the original immigrants consisted of the three kindred tribes of Angles, Saxons, and Jutes. Of these Tacitus does not even mention the Saxons or Jutes, and only names the Angles as one of a number of North German tribes, without fixing their locality. In the second century Ptolemy identifies the seats of the Saxons and Angles as the district between the Elbe, the Eyder, and the Warnow, now constituting the modern Duchies of Holstein, Lauenburg, and Mecklenburg. Before the age of Bede the name of Saxon had been extended from the designation of a single insignificant tribe to that of a wide confederacy of North German tribes. taining their independence of Rome, tenacious of their heathen worship and their primitive barbarism, they habitually plundered the richer nations who had succumbed to the Roman sway.

Scarcely, if at all, affected by contact with Roman influences, the Teutonic tribes who invaded Britain had probably a less distinctly marked political organisation than that of their kindred on the banks of the Rhine and the Danube, a picture of whose institutions has been handed down to us in the pages of Cæsar and Tacitus. But after making due allowance for this difference, for the indistinctness of the picture itself, and for the contradictory ways in which it has been interpreted, we may yet. gather from this source some general knowledge of the primeval institutions of our Teutonic forefathers.

In the time of Tacitus, Germany appears to have been divided

1 "The very diversity of the elements which are united within the Isle of Britain serves to illustrate the strength and vitality of the one which for thirteen hundred years has maintained its position either unrivalled or in victorious supremacy. If its history is not the perfectly pure development of Germanic principles, it is the nearest existing approach to such a development."-Stubbs, Const. Hist., i. 6.

2 Bede (b. 672, d. 735) records very few circumstances relative to the English conquest of Britain from his own sources, but for the most part transcribes the De Excidio Britanniae, composed about 560, of Gildas, b. 516.

[On this point cf. Zeuss: Die Deutschen und die Nachbarstämme, pp. 54 et seq.; and Hannis Taylor, The Origin and Growth of the English Constitution, chap. ii. On the older family constitution," vide R. Schmid in Hermes, vol. 32 (1829).-ED.]

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