CHAPTER II.

OUTLINE OF ENGLISH CONSTITUTIONAL, POLITICAL AND LEGAL HISTORY TO THE ACCESSION OF GEORGE III.1

§ 9. The Teutonic origin of England's political and legal institutions. As the beginnings of American political institutions must be sought in the earlier home of the race in England, so in turn the first germs of England's Constitution can be traced to the still older home of the AngloSaxon race in the German forests. In this respect a striking contrast is to be seen between the history of England during the early medieval period on the one hand and that of France, Spain or Italy on the other. The inhabitants of all of these countries lost their old characteristics, institutions and laws under the Roman influence. Throughout all the western provinces of the Roman Empire only Roman civilization and Roman law existed during the latter period of the Empire. Upon the European continent these influences were not eliminated when the Roman Empire fell before its northern invaders, the victorious Teutonic tribes becoming absorbed and civilized by the inhabitants of the vanquished provinces. The conqueror furnished the ruler, but the conquered supplied the laws. The mass of property passed to the Teuton, but the law governing such property remained mainly that of the Roman. Roman law and civilization held their ground, and by their superior merits forced themselves upon the conqueror. There is no hiatus in the history of these countries; their political, constitutional and legal history extends back beyond the Teutonic to the Roman conquest. The Teuton merely infused a new element into the conquered race, which had little influence upon its political institutions or development. Such is

'Authorities are not cited for statements in this chapter, which

are all matters of general historical knowledge.

universally admitted to have been the course of history in Gaul, Italia and Hispania, but such, in spite of the opinions of a certain school of historians, was not the course of history in Britain. There is and can be no analogy between the conquest of Britain by the Angles, Saxons and Jutes, and the conquest of Gaul by the Franks, or of Hispania by the Goths. While the latter were wars of conquest, the former was a war of extermination and settlement. The amount of time required in each case will alone prove the distinction. A single long reign was sufficient for the conquest and unification of Gaul. Italia and Hispania fell almost without a blow before barbaric hordes, who desired to reign over the inhabitants of the conquered provinces rather than to exterminate them. In Britain, on the contrary, the conquest was the work of centuries. The Jutes, under Hengist and Horsa, are reputed to have reached England in 449, and although the leaders are mythical, the date may be taken as approximately correct. The force of a united British resistance was not broken until the victory of Deorham in 577, and of Chester in 607 cut off Wales from Cornwall on the South and from Strathelyde on the North; and even then warfare with the detached fragments of British territory still dragged on. Angle and Saxon were indeed to be conquered by Dane and Norman before the last sparks of Celtic resistance were crushed out in the thirteenth century. No single battle settled the fate of Britain. It was a story of centuries of desperate resistance, overcome at length by dogged perseverance. The Saxon won the land inch by inch; but what he won he held and settled. The invading hosts were not merely a horde of warriors, such as followed Alaric or Atilia; with the Saxon warrior came his family, his customs and his laws. Whenever the Briton was driven back or exterminated, Christianity, Roman Civilization and Roman law passed away. The Anglo-Saxon, in his new home, worked out for himself his system of jurisprudence as an evolution of those germs of political life brought with him from his old fatherland.

The English constitution and the English common law, therefore, are not mere outgrowths or developments from Roman jurisprudence. They are of independent and indigenous devel

opment. Even what few vestiges of Roman law we find in the common law are of later origin; they were introduced by the lawyers who followed in the train of William the Conqueror and his successors, and were not borrowed from the ancient Britons. The foreign law terms in the English language came in at a later period, and are of Norman-French, and not Welsh, origin.

§ 10. The Anglo-Saxons in Germany.-The English language, institutions and laws being thus of nearly pure Teutonic origin, it is in the original home of the first Teutonic invaders of Britain that the first beginnings of English political institutions and English Constitutional history are to be found. The carliest information on this subject is derived from Roman sources. Some slight mention of the German tribes is to be found in the pages of Cæsar, but it is in the "Germania” of Tacitus that the first circumstantial account of the ancestors of the founders of the English nation is to be found. In spite of the historical errors made by Tacitus, caused largely by his attempts to generalize too broadly concerning the life and customs of what were many scattered tribes, his work will ever remain invaluable to all students of English and American history and law.

In the life of these ancient tribes, recorded for the first time by this author, we find the germs of many of the later English and American institutions. First of all there was the village community, with its system of local self-government, the early ancestor of our town meetings. Each community stood off, free and distinct from the others. It was only in times of warfare against some common enemy that the different communities could be brought to sink their individualities sufficiently to fight under a common leader. The Dux, chosen at such times, acquired neither political power nor permanent authority of any kind. As soon as his military duty was performed he sank again to his former position. A certain central power appears to have resided in a general assembly held at stated times, but the main power was in the assemblies of the pagi and vici, where magistrates, for the purpose of administering justice were chosen from time to time. The power of these magistrates, however, was very limited. They were not so much judges as

presidents of courts of justice, where the decision was rendered. The pagi may also have served as military divisions, each, perhaps, furnishing 100 soldiers for war. The most prominent characteristics of these tribes was their intense love of liberty; but they were far from the position of holding that all men were free and equal. Slaves, even, existed, being either prisoners of war or members of the tribe who had sold or gambled themselves into slavery. Again, the free were of different classes. There were the merely free men and the noble, or principes.

11. The conquest of Britain. It was about the middle of the Fifth century that these tribes first began to desert their continental homes for new settlements in the British Isles. There was no concerted invasion of Britain under a single leader, as was the case in the invasions of Gaul and Italia. Even the traditional accounts, which speak of a single band under a single leader in each of the different sections, are undoubtedly erroneous. There were series of conquests and settlements by many detached bands, differing greatly in size and strength, but none of them large. The English Kingdom was only to be developed by a gradual evolution. The many early kingdoms became consolidated into seven, the seven into three, and the three into one. The first great work of the English people was the creation of a united English nation.

The Jutes apparently led the way and settled in Kent, that part of all Britain most easily accessible to continental Europe. Their fabled leaders, Hengist and Horsa, bore names which signify the stallion and the mare, and are symbolic of the sacred white horse worshiped by the race. The leading seats of Jutish power became developed at Rochester and Canterbury, and the final union of all the Jutish settlements created the kingdom of Kent. Here Jutish invasion ended. The Jutes played the first and least important part in the Teutonic conquests of Britain.

After the Jute came the Saxon, conquering and settling from Kent westward to Cornwall and Wales, and northward from the sea to the Watling Road. Of the seven kingdoms Wessex, Essex, Sussex and a part of Mercia were Saxon. According to the

chronicles the two great streams of Saxon occupations were the invasion of the South Saxons, under Aella, in 477, and of the West Saxons, under Cerdie and Cynric, in 495.

The accounts of the invasions of the Angles are scantier and less circumstantial than those of the Jutes or Saxons, perhaps because nearly all the records of this period come from West Saxon sources. Whatever records may have been retained in Northumbria seem to have. disappeared in the anarchy of the Eighth century, or during the Danish invasions of the Ninth. It is only possible to note the general course of the Angle invasion. Landing at various points along the coast, they seem to have pushed far into the interior, along those great rivers which form the natural highways of England, the Humber, the Forth and others. Slowly pushing their way to the north and west they reached at length the borders of Strathclyde and the Highlands of Scotland. Of the seven kingdoms, Northumbria, formed by a union of Deira and Bernicia, East Anglia, comprising the territory of the north-folk and the south-folk, and the greater part of Mercia-the part held by the middle English, by the Gyrwas and by the Southumbrians, belonged to the Angles.

§ 12. Changes in Anglo-Saxon political institutions occasioned by the conquest of Britain.-The institutions of the Jutes, Angles and Saxons during this period are those of their ancestors of the "Germania" with just those changes which we might naturally expect immigration and conquest to make. First of all, long continued warfare created the King. Nothing approaching the modern conception of a king was to be found while the tribes dwelt in Germany. The highest power was that of the Dux, chosen by the voice of his associates and intrusted with a carefully limited power, for a carefully limited period. The long continuation of the power necessarily intrusted to the chief of each petty expedition had the result of making such power permanent. Kingly power over minute districts led the way through gradual conquest and survival of the fittest, to kingdoms and kings on a large scale, until at last there appeared as a final culmination the King and Kingdom of England. The kingly power, however, was for life only and not inheritable.