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Memoirs of John Selden : and notices of the political contest during his time online

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cause is set forth in the information to put this defendant
to make answer to the matters therein contained. And
whereas, in the said information, there is a charge, or pre-
tence of a charge, laid against this defendant, for conspiring
and confederating with the other defendants ; this defend-
ant saithp not acknowledging any charge either of that kind,
or any other kind in the said information contained, to be
true, that as he conceives he is not bound to make any
answer not only for the reasons before expressed, concerning
the rights and liberties of every member of the House of
Commons, but also for that he conceives it is lawful for
any members of the same House for the time being, freely,
according to their judgments and opinions, to join together,
or agree in preparing to deliver, or in delivering into the
said House, either by speech or writing any matter that
may be communed or treated of in the same House, of
which nature all the particulars supposed to have been
prepared or delivered in the information are ; and having
free liberty to consult, advise and agree together concern-
ing the weighty affairs of the church and kingdom is not,
nor ought to be called or named a confederacy, nor
questioned by information thus exhibited." He then
prayed to have the information dismissed and his reasonable
costs paid.



JOHN SELDEN. 179

It is not uninteresting to know Selclen*s opinion of tlie
forcible detention of the speaker. He thus expresses
himself. "It is supposed in the information, that the
speaker, according to his majesty's command, endeavour-
ing to go out of the chair, was there retained against his
will. This defendant conceiveth it to be so far both in
form and matter from a charge to be answered to by this
defendant, that out of the very words and matter of the
information, the said speaker ought to have been so stayed
at that time ; for besides that, it is a right belonging to
that House, that its speaker by commandment of its
members is to do whatsoever belongeth to his duty in the
said House ; and it appeareth, from the words of the
information, that the greatest number of the House had
assented, before the pretended time of keeping the speaker
in the chair, to the adjournment of the House, according
to the signification of his majesty, it was then the speaker's
duty, according to the custom of the House, to have
declared the adjournment itself, and it was his bounden
duty to stay in the chair, until he had pronounced the
adjournment so assented to. And it is ordained by
authority of parliament in the 6th year of Henry the
Eighth, that no member of the House of Commons for
the time being may depart or absent himself from the
parliament until it is fully ended, finished, or prorogued,
except he have licence of the speaker and commons of the

House *."

* Harleian MSS. 2217. PI. 61, h.

N 2



180 MEMOIRS OF

However doubtful it may be whether the ordinance of
the 6th of Henry the Eighth applies to an adjournment,
as it does to a prorogation of parliament, it is not at all
uncertain, that it is the duty of the speaker to remain in
the chair until the House has agreed to adjourn. Selden
could not plead that this was not done, because in that
case, he would have admitted the occurrence of an event
that chiefly implicated his friends. Whether they were
right in holding the speaker in his chair, is a question
which an information could not impugn : if it were a breach
of parliamentary privilege, the House of Commons was the
guardian and vindicator of its own rights perfectly uncon-
nected with the Star Chamber ; as it was an assault the
speaker had his private remedy. That the king has no
right to command the House to adjourn, is perfectly
clear, though it is his undoubted prerogative to prorogue
or dissolve the whole parliament.

The court party was too conscious of the badness of
their case to show any alacrity in bringing it to an issue ;
consequently, Selden and his fellow prisoners were brought
up on their motion by writs of habeas corpus to the bar
of the king's bench prison, on the first day of Trinity
Term, 1629-

The declaratory part of the warrant for the imprison-
ment of Selden, to Sir Allen Apsley, the lieutenant of
the Tower, as returned by that officer, stated " that this
commitment was for notable contempts by him committed
against ourself and our government, and for stirring up



JOHN SELDEN. 181

sedition against us." Upon this Mr. Littleton pleaded
for his client's release.

He acknowledged the king's power to commit, but, at
the same time, he showed that the court of king's bench
had power to bail any one that was so committed. The
question therefore to be resolved was, whether the offences
specified in the warrant were such as allowed the prisoner
to be bailed. Having demonstrated that in this case they
neither amounted to treason or felony ; and that they
were not provided for by any express statute, he con-
cluded with an incontrovertible appeal to the common
law, and the lately enacted Petition of Right, that Selden
might be admitted to bail*.

In reply, the attorney general argued for Selden and
his fellow prisoners being remanded, for Hobart, Hollis,
and Valentine agreed to have their cases concluded by
the determination upon Selden's case. Sir Robert Heath
evidently felt that the law was against him, and relied
upon convincing the judges that it was their duty to
recommit them if they thought it for the good of the
commonweal. He concluded with an admonition, which
the event proved was a confession that the court party
had prejudged the cases of the prisoners. He used these
remarkable words : " I am confident that you will not
bail them if any danger may ensue ; bat first you are to
consult with the king, and he will show you where the
danger rests."

* Rushvvortli, i. Appendix, 28 — 39.



IS2 MEMOIRS OF

The consultation of English judges with the king as
to the judgment they should give, needs no invective of
the historian, the common sense and the heart of every
reader will supply the just comment. The present
instance affords an example of the legitimate conse-
quences. The judges informed the king, that, by their
oaths, they were bound to bail the prisoners. So far they
were uncorrupted, but they were base enough to request
his directions for them to perform their duty. However,
Charles was resolved that the law should not be superior
to his will, and he dared in the face of his people to set
them an example of contempt for the institutions and
laws of the country.

When the judges were prepared to deliver their judg-
ment upon this question, which so much involved the
liberty of the subject, no prisoners appeared according to
the rule of the court — the bar was vacant. Proclamation
was consequently made calling upon the keepers of the
several prisons to produce the prisoners. The marshal
of the king's bench alone appeared ; and he informed the
court that, upon " the king's own warrant," his prisoners
had been removed to other places of confinement.

The counsel for the prisoners prayed the court to
declare its opinion of the law of the case, but this was
declined by the judges, because, as the prisoners were
absent, they could be neither bailed, delivered, or remanded.
Their lordships had been prepared for this conclusion,
because the evening previously the king wrote to inform



JOHN SELDEN 183

them that the prisoners would not be allowed to come
before them, in consequence of his hearing " how most of
them awhile since did carry themselves insolently and
unmannerly," both towards himself and their lordships.
" Nevertheless," continued this contemptible apology
for injustice, " the respect we bear to the proceedings
of the court hath caused us to give way that Selden
and Valentine should attend you to-morrow." Upon more
mature deliberation, about three hours afterwards, even
this was altered, the king informing the judges in a
second letter, " that all the prisoners would receive the
same treatment*."

Thus did the infatuated court urge on towards ruin.
Sir Robert Cotton had warned it of the increasing dis-
satisfaction of the people ; and Lord Carlisle had long
previously urged upon its attention the great political
truth, that to gain their good opinion is to obtain power.
Yet these admonitions were disregarded, and if we trace
the public transactions of the government step by step ;
if we notice the series of violations that were offered to
the national institutions and liberties, the conviction is
forced upon us, that no conduct could be pursued better
calculated to precipitate the governed and the government
into that lamentable collision which invariably is fatal to
the latter. The parliament also had warned the court
that submissive endurance was at an end, and that no

* llushwoi-th, i. 679—681.



184 MEMOIRS OF

government would be obeyed without resistance that did
not guide its proceedings by the established laws. The
policy dictated by common sense, and common sense is
the best political as well as the best domestic mentor, was
to adopt such a guide, and to relax rather than outstretch
the prerogative of the crown. Had the opposition been
a petty faction, an illegal effort of government might
have crushed it ; but no oppression by that power, how-
ever determined, could beat down the united resolve of
the nation. Every fresh injustice acted but as a stimulus
to those who had already been roused to resistance.

The course that was thus unwisely and illegally
adopted was pursued with severity. Solitary confine-
ment, that is, imprisonment without any intercourse
with friends, or personal occupation, is the most severe
punishment, short of a lingering death, that can be
inflicted upon our nature. To this species of imprison-
ment; to the worst of weariness, the weariness of
lengthened inactivity ; Selden, and his fellow prisoners,
were at first condemned. During the first three months,
the tedious monotony of this imprisonment was without
the happy companionship of a book, and of course writing
materials were strictly forbidden. With books they could
not have conspired treason, therefore their denial was an
unnecessary deprivation, the severity of which they will
duly estimate, who, like Selden, are blessed with a taste
for literary pursuits. " After the lapse of about three
months," says Selden, " permission was obtained for me



JOHN SELDEN. 185

to make use of such books as by writing for I procured
from my friends and the booksellers, for my own library
then, and long subsequently, remained under seal." The
books he obtained were the Bible, both Talmuds*, some
later Talmudic writers, and Lucian. He says, " also
I extorted by entreaty from the governor (Sir Allan
Apsleyt) the use of pens, ink and paper; but of paper
only nineteen sheets, which were at hand, were allowed
each of which were to be signed with the initials of the
governor, that it might be ascertained easily how much and
what I wrote : nor did I dare to use any other. On these,
during my prison leisure, I copied many extracts, from
the above-named books, which extracts I have now in my
possession thus signed and bound together t."

Towards the close of the vacation, the judges of the
king's bench, being all in the country, were summoned
to meet at Serjeant's Inn, on Michaelmas Day ; and on

* Sir Robert Cotton appears to have been his agent in obtaining^
books. He probably obtained " The Talmuds of Babylon, in sundry
great volumes," of the Bishop of Lincoln. — (Cotton MSS. Julius.
C. 3, 18 d.

f Selden always spoke gratefully of the kindness of this gentleman.
Sir Allan died in May, 1630, of a fever, which he caught during Buck-
ingham's unfortunate attack upon the Isle of Rhee. His daughter,
Mrs. Hutchinson, speaking of him, when Governor of the Tower, says,.
" he was a father to all his prisoners, sweetening with such compas-
sionate kindness their restraint, thut the affliction of a prison was not
felt in his days." She adds, that he had a singular kindness for all
persons that were eminent in learning. — (Memoirs of Col. Hutchinson,
12.)

\ Opera Omnia, ii. 1428.



]8() MEMOIRS OF

the following morning, the Chief Justice (Sir Nicholas
Hyde) and Mr. Justice Whitelock had a conference with
the king at Hampton. His majesty then told them he was
willingthe members in the Tower should be bailed, although
they were so obstinate that they would not even petition
him and confess " that they were sorry he was offended
with them*." He then told the judges that he should
abandon the proceedings against the members in the
Star Chamber, and indict them in the court of king's
bench. The judges told him " the offences were not
capital, and that by law the prisoners ought to be bailed,
giving security for their good behaviour."

On the first day of Michaelmas Term the judgment of
the court being again moved for, it was pronounced to
the intent they had previously informed the king ; Selden,
answering for himself and his brother prisoners, replied
that they had their sureties ready for the bail, but not for
the good behaviour, and desired that the first might be
accepted, and the latter not urged t. He reminded the
court that they had been imprisoned thirty weeks ; that
in all the arguments the only question had been, whether

* The court party finding that it had erred without attaining its object,
would willingly have sneaked out of any further proceeding. It ena-
ployed Dr. Mosely (see p. 100) to persuade the imprisoned members
to submit, but they would not sue for an acquittal as a boon, which
they knew they were entitled to obtain as a right.

t The sureties ready to bail Selden, he tells us, were Henry, after-
wards Earl of Bath, Robert, Earl of Essex, Sir Robert Cotton, and his
son, Thomas Cotton.



JOHN SELDEN. 187

they were or were not bailable : and that finding sureties
for their good behaviour was admitting by implication
that they were guilty. In conclusion, said Selden, " we
demand to be bailed in point of right ; and if of right it
be not grantable we do not demand it. The finding of
sureties for good behaviour is merely a point of discretion,
and we cannot assent to it without great offence to the
parliament where these matters, which are surmised by
the return, were acted *."

These just objections to finding sureties for their good
behaviour were not all that could have been urged,
for there was this other that was very sufficient. They
would hate been held in thraldom to the amount of the
security by their persecutors ; for, as the judicature of
England was then unfortunately constituted, it would
have interpreted any conduct to be a breach of good
behaviour, that the Stuart party with any colourable
reason might suggest. We have already seen it consented
not to do right when that party dictated, and without
any other appeal to the history of the period, we must be
conscious that there is no wide interval between passive
and active injustice.

Selden remarks in his last published work, and the
subsequent reversal of the judgment justifies his assertion,
tliat the judges themselves were conscious that he and his
fellow prisoners had done nothing that required them to
find sureties for their good behaviour ; and their counsel

* Rushw ortb, i. G82.



188 MEMOIRS OF

as well as their own experience assured them, that they
were only usually required of criminals ; they, therefore,
refused to enter into these recognisances, not only because
it would be conduct unworthy of themselves, but because
they were determined that the privileges of parliament,
and consequently the just liberty of the English people
should not be infringed by their acquiescence *.

Consequently they were remanded to the Tower, and
their persecution was now changed in form, as the king
had announced, to an information against them in the
court of king's bench. Selden, Hollis, Valentine, and
Eliot were made the subjects of this proceeding. They
excepted to the jurisdiction of the court, as their offences
were alleged to have been committed in parliament, and
therefore by parliament alone were punishable. This
exception was overruled, and judgment was finally given
against them, upon the plea nihil dixit, " that they should
be imprisoned, and not delivered until they had given
security for their good behaviour, and made a submission
and acknowledgment of their offences."

In subinitting to this sacrifice of inclination to duty,
Selden had to overcome many temptations besides our
natural repugnance to captivity. Far more than the
requisite number of friends were ready to be his sureties ;
they urged him to comply, and represented that the time
of his imprisonment was of an entirely indefinite duration.
The chief justice declared that there was no other pur-

* Opera Omnia, ii. 1 !29.



JOHN SELDEN. 189

chase price for his liberty, and when it was remarked
that he had been already eight months in prison, that
judge, who, as Selden remarks, ought to be " the legal
vindicator of every personal liberty," observed they might
be lengthened into eight years, unless he submitted.
Entreaties and threats were alike unavailing, and he
remained firm even with the knowledge that those, who
had hitherto suffered firmly by his side, faltered in their
endurance, and at length compromised with their common
oppressors.

Mr. Hollis paid one thousand marks ; Mr. Long two
thousand marks ; Mr. Valentine five hundred pounds, and
were, with Mr. Hobart and others, released after various
terms of imprisonment, upon entering into bonds of two
thousand pounds each, not to come nearer the court than
ten miles*.

Sir John Eliot fell a martyr to the cause, dying in
prison rather than submit to pay a fine of two thousand
pounds. He was warned that the confinement was
killing him, but he suffered and died with magnanimity.
He thought, and wrote, and wept with anxiety, for the
welfare of his orphan boj'^s, but he resolved to leave them
his example as well as his precepts to excite them to live
worthily. This seems a case in which even the most

* Parliament. Hist. viii. 388. Mr. Long- yielded to the entreaties of
his wife and mother ; but when he understood that his fellow-prisoners
had refused to tinrl sureties for their good behaviour, " he had no rest
till he had made his sureties to desist from their suretyship, and so was
again returned into prison." (Sloane MSS.)



190 MEMOTT^S OF

tyrannical might have relented ; it was a father and a
citizen sacrificino- himself for the interests of his children
and his country. But the prison was allowed to complete
its tardy yet certain work of death, and when the last
great day of recompense arrives, there surely will be more
than one trembler for the unpardoning part he took in
the destruction of the patriot Eliot*.

Selden was not dismissed without further persecution,
for he was attacked upon another charge, though yet
unfreed from the sentence already stated.

The attorney general filed an information in the Star
Chamber against him, Sir Robert Cotton, and Gilbert
Barrell, for " intending to raise false, scandalous, and
seditious rumours" against the king and his govern-
ment, as appeared in "a false, seditious and pestilent
discourse," which they had " seditiously framed, contrived,
and written."

This discourse was entitled, " A proposition for his
majesty's service, to bridle the impertinency of parlia-
ment," and upon their trial was incontestibly proved to



* In 1641, the parliament voted the treatment of these g-entlemen
to be a breach of the privilege of parliament, and gave to them, or
their heirs, (accordingly as they had, or had not, survived,) 5000/.
each, as some recompense for the expense and loss they had suffered.
In 1667, when the decision of the legislature may be esteemed more
dispassionate, both houses of parliament agreed in resolving that the
judgment of the court of king's bench upon these sufferers in the
cause of freedom, "was an illegal judgment, and against the freedom
and privileges of parliament." (Croke's Reports, iii. 609.)



JOHN SELDEN. 191

have been written by Sir Robert Dudley, commonly called
Earl of Warwick and Duke of Northumberland, in the
reign of James the First. The manuscript was in the
library of Sir Robert Cotton, and copies of it being traced
to the possession of Selden, Barrell, and the Earls of
Bedford, Somerset, and Clare, they were all implicated in
its dissemination until the decision of the court deter-
mined its true origin.

It appears to have been a satire upon the spirit of the
Stuart government ; and the ministers of Charles must
have so thought, otherwise they would have never pro-
secuted such men as Sir Robert Cotton and Selden, who
had been the unflinching advocates of constitutional
liberty, for a composition of which every sentence
recommends the most absurd system of despotic misrule.
A few short extracts will best show its character.

It recommends the king to have a fort in every town,
well supplied with men and the necessaries of war, for
" it is a greater tie of the people by force and necessity
than merely by love and affection, for by the one the
government resteth always secure, but by the other no
longer than the people are well contented. Secondly, it
forceth obstinate subjects to be no more presumptuous
than it pleaseth your majesty to permit them. Your
majesty's government is more secure by the people's more
subjection, and by their subjection your parliament must
be forced consequently to alter their style, and to be con-
formable to your will and pleasure ; for their words and



192 MEMOUIS OF

opposition import nothing when the power is in your
majesty's hands to do with them what you please." The
second part of the discourse relates to his majesty's
revenues, and advises that if " subjects have not wit
or will to consider their own interest, your majesty's
wisdom must repair their defects, and force them to it by
compulsion*."

At length, WTary of this contest with men who would

* There is a complete copy of this discourse among the Harleian
MSS, To it are appended some particulars relating- to this extraor-
dinary prosecution. Still more, full information is contained in Sir
Symonds D'Ewe's Journal, preserved among the same MSS. See also
the Gentleman's Magazine, xxxvii. 335.

A manuscript note of Chief Justice Hyde's says, that the informa-
tion exhibited on this occasion hy the attorney general included the
Earls of Bedford, Clare, and Somerset. Instead of giving an honest
acquittal to all the defendants, the Lord Keeper Coventry signified to
the court, that the king, out of his grace and joy of the birth of a
prince, (Charles, born the May before,) would pardon them, and not
proceed to demand sentence. But on motion by the attorney general,
that Sir Robert Cotton had in his library, records, evidences, ledger-
books, original letters, and instruments of state belonging to the king
(and to prove it the attorney general shewed a copy of a pardon
which Sir Robert had obtained from King James, for embezzling re-
cords, and other offences,) it therefore was thought lawful, and ordered
that commissioners should be appointed who might search his library,
and withdraw from it all the king's papers. (Lansdowne MSS. 841,
fo. 79.) This was the death-blow to Sir Robert; from that day he
declined in health, frequently declaring to his friends, " that they had
broken his heart who had locked up his library from him ;" and just
previous lo his death, he had the privy council informed, " that their
so long detaining his books from him, without rendering any reason
for the same, had been the cause of his mortal malady." He died in
Mav, 1631.



JOHN SELDEN. 19^

yield nothing of their rights, and over whom no advantage
could be gained, the court mitigated the suggestions of
its anger, and an order was sent by the privy council to
the lieutenant of the Tower, to release such as remained
in his custody from close confinement, to allow them such
freedom as could be enjoyed within the walls, and for
them to have a free intercourse Avith their friends. The
government took care that they should pay for this
indulgence, since Selden informs us, that whereas they
had, according to custom, been liberally dieted at the
expense of the crown, whilst closely imprisoned, they were
now left to provide for themselves *.

This relaxation encouraged them to request a still
more diminished restraint, for, considering that it would
be more difficult to obtain permission to go occasionally


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Online LibraryGeorge William JohnsonMemoirs of John Selden : and notices of the political contest during his time → online text (page 12 of 23)