CHAPTER ELEVEN John Selden

John Selden (1584-1654) would doubtless take a certain sardonic pleasure in knowing that from among all his large and wide-ranging corpus of writ­ten works Table Talk has been chosen for discussion.

What gems the great books were! Selden's earliest works, written while he was still a student at the Inner Temple, were three studies of early Eng­lish and British history: Analecton Anglo-Britannicon (1607), Jani Anglo- rum Facies Altera (1610), England’s Epinomis (1610). These early established Selden's reputation as linguist and historian. He edited Fortescue's De Lau­dibus Legem Angliae in 1616. And in his 1623 edition of the early twelfth century chronicler Eadmer's Historia Novorum, he included in appendices to it a great deal of information derived from Domesday Book, thus giv­ing increasing prominence to what was becoming the foundation docu­ment to the study of early English medieval history.¹ By the 1620’s, Selden was increasingly involved in research on Classical antiquities, particularly centered on the notable collection of Greek and Roman statuary acquired by the second Earl of Arundel and Surrey, the “Arundel Marbles,” and the Earl’s collection of other objects and manuscripts.

It was also at an early stage of his scholarly activity that Selden began to make those contributions to English law and legal history which were a major source of his contemporary fame—and which, when a century ago the founding fathers of modern English legal history cast about for a name for their new society, moved them to honor Selden. His first work was a luminous legal-historical study entitled, The Duello, or Single Combat, from Antiquity derived into this Kingdome of England (1610). This work, besides in great part standing the test of later scholarship on trial by battle, has added significance in the fact that it was one of the earliest English legal mono­graphs, a scholarly study on a limited area as distinct from the large and ponderous legal treatises which obtained from Glanvill’s Tractatus in the twelfth century to Coke’s Institutes in the seventeenth. Indeed, this vehicle Selden as juristic author made peculiarly his own. Titles of Honour (1614) was a comprehensive treatment of dignities including kingship extending backwards to before the Flood, ranks and degrees of nobility, and the rules and laws of precedence: the very stuff of the new-found passion for precise status that an age undergoing unsettling social change found reassuring.

In the same year Selden published what was probably his finest legal monograph and certainly his most controversial work, Historie of Tithes, still called “the classical study” of the subject.² Beginning with Melchize- dek's gift to Abraham (Genesis 14:17-20), Selden established origins that were entirely human and positive-law, rather than divine and moral, for that most important revenue in support of the clergy. Predictably, the book raised a storm of protest from every episcopal palace, deanery, canonry, and parsonage in England. The book was suppressed. Selden was questioned about it in the Court of High Commission for Causes Ecclesiastical, forced to make his submission, and inhibited from printing any reply to those who attacked him over it. This was merely the first time Selden fell afoul of authority. Yet even in the peril there lay future advantage: James I, always inordinately confident of his intellectual prowess in matters theological, thrice summoned Selden to discuss tithes with him.

Selden was thus encouraged to capitalize on such marks of regal favor by writing a tendentious and misdirected counterblast to Hugo Grotius's assertion in his treatise, Mare Liberum (1609), that the high seas were open to all traffic. Selden, in his appropriately titled Mare Clausum, written in 1618 but not published until 1636, made the preposterous assertion that the law of nature and the law of nations both permit the sea as fully as the land to be made subject to proprietal right and that the crowns of Great Britain, now joined in James I of England who was also James VI of Scotland, en­joyed the circumambient seas as a perpetual appendage. Though the work was gratifying to James, he refused to license its publication in 1618 for fear of offending his brother-in-law (and creditor) the king of Denmark.

It is significant that, with two exceptions, neither of them extraordi­nary, Selden did not write any major work on English law or legal history after 1618. The least considerable of the two exceptions was a 1647 edition of Fleta, a pale thirteenth-century reflection of Bracton's treatise. Selden took the opportunity in editing the text (which was a unique manuscript in the possession of Selden's friend, political ally, and fellow antiquarian, Sir Robert Cotton) to add an extensive essay dealing discursively with a great many topics, the most important and useful of which was the influ­ence of the Roman law on English law.

Clearly, that dictum, prudence in the face of risk, was one reason for Selden's turning away from English legal scholarship during the 1620’s. There was hardly any subject in English law that was not potentially dan­gerous: that decade witnessed the increasing gap between king and Parlia­ment, with both sides appealing to the law and legal record in support of arguments becoming more intensely polemical and less capable of recon­ciliation. Mare Clausum was safe to publish, an unexceptionable work, for every Britisher could agree that Britannia should rule the waves. But, per­force, how to rule the waves had to be begged. This question Selden careful­ly avoided, for it turned on, first, whether Parliament was prepared to raise the revenues to put a fleet to sea under the command of royal ministers whom it did not trust; and, second, whether if Parliament did not vote such revenues, the king could raise them by a tax on all the counties of England. These questions were anything but safe, during the 1630’s, as ship-money became a burning political issue with revolutionary overtones.

Another reason that Selden gave over legal scholarship in the 1620's may have been his increasing personal involvement in the political process, to which he brought peerless skills as a legal and historical researcher.

In the Parliament of 1628, with its two sessions, a new and dangerous spin was given to such disputation. What before had been merely “legal” was now in the process of becoming “constitutional.” Polemical antiquari- anism, the ransacking of the records for precedental facts, was transformed into metahistoriography, creating whole explanations for the present by reference to past developments that were determinative and carried an im­port beyond the facts themselves. This represented a proto-ideology pos­iting an ancient constitution (Saxon or even British) that had been sub­verted by Norman kings, who had fixed upon the realm a Norman yoke of regal tyranny. This ancient constitution was almost a cliche in parliamen­tary rhetoric, expounded with varying degrees of sophistication, rigor, and truculence. Even a skeptic, if caught up in harrowing political debates amid which liberties actually were at stake, made some obeisance to the idea of the constitution. While Selden knew more about Anglo-Norman England than almost any other man alive, he could not fail to genuflect, though he remained a skeptic and, with unusual perspicacity and realism, saw the disputes as more limited and less grandiloquent than the ideology of the constitution puffed them up to be.

Selden's involvement began in 1621. Though not a Member in that Par­liament, he was part of the brains-trust who avidly searched the records on behalf of a group of prominent MPs who were openly questioning sensitive issues: monopolies that the crown had granted, James's foreign policy (or lack of it), and the failings of certain servants, including Lord Chancellor Bacon and Attorney-General Henry Yelverton. Selden was so active and prominent that, along with the MPs he had counseled, he suffered a brief incarceration for his efforts. Entering Parliament in 1624, he was not bash­ful in speaking, though the subjects debated involved fewer of the historio- constitutional issues which were his forte than had been the case before or would be again. He did not sit in Charles I's first Parliament in 1625, but was elected to the second in 1626. This Parliament saw the exclusion of the most prominent opposition MPs, including Sir Edward Coke, Sir Rob­ert Phelips—who had led the attack against “grievances” in 1625 — and Sir Thomas Wentworth. The leadership vacuum was filled by Sir John Eliot, John Pym, and John Selden. Selden played a major role in preparing and moving the impeachment of the king's favorite, the Duke of Buckingham, blamed for the military disasters of the previous year. Charles's dissolution of Parliament saved Buckingham; Eliot was arrested, and Selden was in some danger of the same fate. As it was, he withdrew to the estate of his patron and friend, the Earl of Kent, to launch himself on the study of ori­entalia. His reverie lasted less than two years, ending with the summoning of Charles's third Parliament in March 1628.

It was in the Parliament of 1628, particularly in the first of its two stormy sessions, that Selden took a leading role, second only to that of Eliot. The great grievances of the first session turned on extra-Parliamentary taxation, unlawful imprisonment, and illegal military exigencies. The first two grew out of the notorious Forced Loan (1626) by which Charles and Bucking­ham had sought, in the face of Parliament's refusal to provide support, to raise enough revenue to simultaneously prosecute war against both Spain and France. The last grievance centered on the billeting of troops in pri­vate homes, the execution of martial law by military officers in peacetime, and local taxation for logistical support of the impressed army, phenomena which since 1626 had seemed prominent and permanent. Behind all such issues were matters of precedent: what had been done before, and under what circumstances, and with what success? Here, Selden came into his own as parliamentarian.

Selden's scholarly sojourn had been interrupted, during the fall of 1627, by his appearance as counsel in the Five Knights' Case. The Five Knights were gentlemen who had refused to contribute to the Forced Loan, and who, after they were jailed by order of the Privy Council, had applied in King's Bench for habeas corpus against their imprisonment without cause shown. In his argument, Selden, true to form, had led with the strongest of his precedents. Yet he had recognized—it was the acuity of a legal mind rather than any partisan heart—that the statutory foundation upon which precedent had to be raised was unequal to the task without supplying more meaning than the act would bear:

The statute of Magna Carta... that statute [which] if it were fully executed as it ought to be, every man would enjoy his liberty better than he doth... out of the very body of this Act of Parliament, besides the explanation of other stat­utes, it appears, nullus liber homo capiatur vel imprisonetur nisi per legem terrae. My Lords, I know these words, legem terrae, do leave the question where it was, if the interpretation of the statute were not. But I think, under your Lordships' favour, there it must be intended, by “due course of law,” to be either by pre­sentment or by indictment.⁵

The court was not prepared to supply so much new cloth—rightly, by con­temporary canons of statutory interpretation. Judgment went against the prisoners, and Chief Justice Hyde heavily impressed upon Selden and his fellow-counsel the limitations, as understood in the Stuart age, of a defense based entirely on precedent. It was a salutary lesson, applicable to any age, that precedent is only as good as the factual similarities between the in­stance cited and the current question:

Then the precedents are all against you [the prisoners], every one of them, and what shall guide our judgments, since there is nothing alleged in this case but precedents?... [I]f no cause of the commitment be expressed it is to be pre­sumed to be for matters of state, which we cannot take notice of. You see we find none, no not one, that hath been delivered by bail in the like cases, but by the hand of the King or his direction.⁶

On March 27, 1628, in the committee of the whole, the Commons took up the Five Knights’ Case. Selden, speaking as an MP, noted, “I have spoken for my fee in this case already, and now I speak to discharge a duty to my country,” reiterated his precedents. Though he would “not meddle with state” and avoided commenting on the argument that the prisoners had been committed for reason of state, he concluded that “state, methinks, should not alter nor cross law.” Yet Selden still was stalked by the fact that the precedents would not support the conclusion sought. And as parlia­mentarians were increasingly prone to do, he cast the matter higher, mak­ing an appeal beyond English law and even English experience:

I will speak in reference to other states. They [the king’s supporters] tell us of foreign governments. I have read stories and lately and for this purpose (for you know where I have use of them in abundance). I will make it good in point of law; there is no prince in Christendom that claims this right, there is neither step nor sign of it in any history.⁷

Of course there were an abundance of signs to be seen, in history and in the divided present, and Selden could no more make his argument good in history or contemporary practice than he could in law.

The point ought not to be labored. The political process, even with constitutional overtones, readily spills out of the metes and bounds of law—surely this is the best argument for the separation of powers. What is taught by the reality that Selden had to confront is that even new posi­tive law innocent of ambiguity does not necessarily settle everything, not even the disputes that called it into being. The first session of the 1628 Par­liament witnessed the king's reluctant, pinched consent to the Commons' carefully wrought Petition of Right. Cast in the form of a reconfirmation of Magna Carta, the Petition sought—and the king offered words that prom­ised—redress of grievances that most troubled the Commons. Yet events would prove the Petition of Right unenforceable, and its provisions would be ignored within a matter of months. Worse, the second session of the Parliament would end in a riot, on March 2, 1629, with the Speaker forc­ibly held in the chair as the House of Commons voted three intemperate resolutions. Charles, determined never to call another Parliament, set about his Personal Rule. And as a first order of business, the king and his Council moved against Eliot, Sir Robert Cotton, and John Selden. An unpublished polemical tract was discovered in Cotton's study and was deemed seditious. For two years, Selden languished in prison under varying degrees of rigor­ousness. This drained his courage (he got out by a sadly craven submission) and interfered with his scholarship.

Selden never again played as prominent a role in politics, though he had more than a score of years left him, and would be elected to both the Short Parliament and the Long Parliament. Indeed, in 1641, in the first session of the Long Parliament, he took a markedly unpopular but legally correct stand against the legislative destruction by act of attainder (impeachment having failed) of the king's chief minister and Parliament's nemesis, Thom­as Wentworth, Earl of Strafford. Religion was another field in which Selden also lacked the stomach for zealotry. He was a passively loyal, often irrever­ent, adherent of the Church by Law Established—certainly not a member either of the Puritan party within the Church or the Separatists without it. That, if nothing else, took the revolutionary fire out of him in the 1640’s, as the revolution-become-civil-war grew more divisive over ecclesiological issues than constitutional ones.

Not least, Selden also came to enjoy creature comforts, the solace of luxury, and the opportunity to pursue his intellectual interests. Early in his career, he became steward and counsel to Henry Grey, ninth Earl of Kent. Common bruit had it that after Selden moved in with the Earl and Count­ess at their seat in Bedfordshire, the relationship developed into a menage a trois. It is pretty well established that after the Earl's death, Selden clan­destinely married the widowed Countess; and there is no question that fol­lowing her death, Selden was comfortably provided for during his life, with realty as well as goods and chattels. Though Selden had achieved the profes­sional recognition of being called bencher at his Inn, the Inner Temple, in 1633, his legal practice was very slight. There seems to have been some merit in the scurrilous relation of the seventeenth-century gossip, John Aubrey, that “I remember Mr Sadler (who wrought many years to that Family) told me that Mr. Selden had got more by his Prick than he had done by his prac- tise.”⁸ In any event, Selden pursued his scholarly endeavors without letting other men's politics, any more than his legal practice, get in the way.

Neither would Selden allow the study of English law to intrude on his passion for orientalia. If caution here moved him almost to muteness, even more did his developing scholarly interests. On a broad range of matter of law and legal history about which he had thought much and studied hard, and to which he could have contributed extraordinary and unique insights—both to contemporaries and to us who remain intrigued by that earliest “modern revolution”—he largely kept silent. Almost mute, nearly silent, but not quite. That is why Table Talk must serve as sufficient mon­ument to an extraordinary jurist. It contains a myriad of insights into a cosmos of contemporary concerns. Each heading in its alphabetical ar­rangement, so much like the contemporary commonplace book dear to the lawyer's heart, bears witness to abundant knowledge and to a lively intel­ligence. Moreover, each demonstrates the skepticism that provides balance even in the most hotly contested arena of ideas. The irreverence with which almost all religious matters are treated serves as an antidote to the toxin of contemporary reverences doing battle as prophecies armed. The majesty of the law comes in for very subtle diminution, as its imperfections are re­vealed and the useful and oft-ignored contributions of other legal systems noticed.

Above all else, perhaps, the beauty of Table Talk is that unlike such other great anecdotal compilations as Dr. Johnson's Gospel According to Mr. Boswell, which relied upon the groaning board for site and situation, Selden's ruminations reflect an age of unusual turmoil and crisis in which accepted notions, practices, arrangements, and beliefs were fundamentally challenged and ideas were forged that move us to this day. Selden was one of the great smiths, and each apothegm, aphorism, and epigram in Table Talk rings with the clarity of a hammer striking the anvil. Each is worth our attention and our time, for consciously or unconsciously we and our forebears in the common law world since have been in some part formed by those notions. None more so than this:

Wit and Wisdom differ;

Wit is upon the sudden turn,

Wisdom is in bringing about ends.⁹

We seek ends, and for that wisdom alone works.