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

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relating to religion and ecclesiastical affairs, had always
occupied a primary position, and now that the work of
reformation was actively proceeding these met with an
early attention.

It has been noticed that during the long suspension
of parliament a convocation of the clergy had draw'n up
new canons and ordinances. This deserved the atten-
tion of the legislature, and previous to its consideration
by the whole House, a committee, of w hich Selden was a
member, proceeded to search for convocation warrants and
other preliminary information. To assure us that the
clergy had been wrong in their proceedings, we need no
other authority than Clarendon, who says, " The convo-
cation made canons, which it was thought it might do ;
and gave subsidies out of parliament, and enjoined oaths,
which certainly it might not do : in a w^ord, did many
things Avhich in the best of times might have been
questioned, and therefore were sure to be condemned in
the worst, and drew the same prejudice upon the wiiole
body of the clergy, to which before only some few
clergymen were exposed *."

The members of that convocation, therefore were justly
alarmed when they became acquainted with the proposed
parliamentary inquiry. The following letter to Selden

* Hist, of the Rebellion, i. 11(5. Fol. Ed.
S 2



260 MEMOIRS OF

from Archbishop Laud, is at once a confession of error
and of fear.

*' To my much honoured friend, Mr. John Selden,
" These, Sal. in Christo.
" Worthy Sir,

"I understand that the business about the late

canons will be handled again in your House to-morrow.

I shall never ask any unworthy thing of you, but give me

leave to say as follows : If we have erred in any point of

legality unknown to us, we shall be heartily sorry for it,

and hope that error shall not be made a crime. We hear

that ship money is laid aside as a thing that will die of

itself, and I am glad that it will have so quiet a death.

May not these unfortunate canons be suffered to die as

quietly without blemishing the church, which hath so

many enemies both at home and abroad? If this

may be, I here promise you, I will presently humbly

beseech his majesty for a licence to review the canons, and

abrogate them ; assuring myself that all my brethren will

join with me to preserve the public peace, rather than any

act of ours shall be thought a public grievance. And upon

my credit with you I should have moved for this licence

at the very first meeting of this parliament, but that both

myself and others did fear the House of Commons would

take offence at it (as they did at the last), and said we

did it on purpose to prevent them. I understand you

mean to speak of this business in the House to-morrow



JOHN SELDEN. 261

and that hath made me write these lines to you, to let
you know our meaning and desires. And I shall take it
for a great kindness to me, and a great service to the
church, if by your means the House will be satisfied with
this, which is here offered of abrogating the canons.
•* To God's blessed protection, I leave you, and rest
" Your loving poor friend,

"W. Cant."

" Lambeth, Nov. 29, 1640."

" I mean to move the king this day for a licence, as is
within mentioned *



ja } J



Such an application was not likely to meet with com-
pliance in an assembly the majority of whose members
were inimical to the church establishment, anxious to
avail themselves of every opportunity to attack it, and
strenuous in their exertions to effect its overthrow. They
were sustained by the prejudices of the people, for the
tide of public opinion set strongly against the episcopal
form of church government. Mr. Bagshaw, who was
reader of the Middle Temple, lecturing during the Lent
vacation of 1640, upon the statute passed in the 25th
of Edward the Third, inferred from its enactments, that
bishops as spiritual lords have no right to sit in
parliament. It is true, that he was silenced by the
government, but the support he met with, and the very

* Biofjraphia Britan., tVotii tlie Harding' MSS.



26^2 MEMOIRS OF

fact of his lecturing on the topic before such an audience,
is testimony of that opinion not being unpalatable or
unfavoured *.

Selden consistently adopted the moderate and wise
course of improvement rather than of destruction, and
declaring himself an enemy of the church's usurped
powers, threw himself directly in opposition to those who
wished to subvert its doctrines and discipline.

Many preliminary skirmishes occurred before the fate
of the establishment v/as finally determined. Upon the
occasion of a remonstrance being presented from some
sectarian ministers against the government of the church,
Selden protested against the discussion of religious topics
in the House of Commons, and the debate then proceeded
upon the right of bishops to suspend the inferior clergy
from the performance of their ministerial duties. In
opposition to this right Sir Harbottle Grimston employed
the following extraordinary logic. " That bishops are
Jure divino is a question ; that archbishops are not Ju?'e
divino is out of question. Now that bishops, who are
questioned whether Jure divino, or archbishops, who out
of question are not Jure divino, should suspend ministers
that axe Jure divino, I leave to you to be considered."

To this, in a happy vein of ridicule, Selden thus replied.
" That the convocation hjure divino is a question ; that
parliaments are not Jure divino is out of question ; that

* Heylin's Life of Laud, 38L Whitelocke's Memorials, 3L



JOHN SELDEN. 263

religion is jure dimno there is no question. Now, sir,
that the convocation, which is questionable whether jure
div'mo, and parliaments which out of question are not
jure clivino, should meddle with religion, which, question-
less injure divino, I leave to your consideration !"

Sir Harbottle, pursuing his argument, observed, " that
archbishops are not bishops." To which Selden rejoined,
" that is no otherwise true than that judges are no lawyers,
and aldermen no citizens * ! "

On the 31st of January 1641, a declaration was read in
the House of Commons against episcopacy. Selden used
all his learning and reason to defeat it, by endeavouring to
establish that it is not a subject properly within the
authority of parliament. His opposition was in vain, for
the bishops were deprived of their seats in parliament,
and the clergy generally proscribed from holding any
civil office, early in the following month. As Selden
had foretold, this was but a prelude to the abolition of
episcopacy, which was finally voted by the same parlia-
ment in September, 1642.

A man's favourite pursuit will obtain his attention even
when he is engaged in the most dissimilar occupations,
and this predominating influence, which made Newton
work problems amid the bustle of a market day, and
Korner write poetry amid the awful preparations of
battle, impelled Selden to pursue his antiquarian litera-

* Franklyn's Annals, 836. Rushworth, &c.



2()4 MEMOIRS OF

ture through the excitement, and turmoil of tbis
revohitionary crisis.

In 1640 he published one of his most erudite works,
entitled " De Jure Naturali et Gentium juxta disciplinam
Ebraeorum, libri septem." Its design is supposed to
have been suggested to him by Grotius's celebrated
treatise " De Jure Belli et Pacis," yet its method is
totally different, and its motto from Lucretius, claims for
its subject the merit of absolute novelty. It is without a
dedication; an observable circumstance, indicative of the
dubious complexion of the time in which it appeared, but
it is ushered in by a preface, containing an analysis of the
work, which the variety of its matter and intricacy of its
arrangement renders very necessary.

Speaking first of the title, he explains the Jus Naturale
to mean the law of the world, or universal law ; and the
Jus Gentium to be the peculiar law of different nations.
He quotes Lucan's similar definition in the apposite
lines : —

Sed neque jus mundi valuit, neque foedera sancta
Gentium.

Selden limits this natural or universal law to those
precepts which the Jewish books and traditions lay down
as delivered by Noah to his posterity, and as supposed to
have been derived by him from Adam, to whom they were
given by God. Of these seven heads are enumerated,
namely, 1. Idolatry. 2. Blasphemy. 3. Homicide. 4.



JOHN SELDEN. 265

Illicit concubinage. 5. Theft. 6. Eating flesli severed
from a living animal. 7. Judicial proceedings and civil
obedience.

Under these heads is given a digest of all the laws
embracing the civil and religious polity of the Jews,
distinguishing that part of it which belongs to the uni-
versal law, from that which is national or municipal. In
an introductory book he details the Hebrew philosophy,
and the sources of natural law, according to the Jewish
writers, particularly considering the supposed origin and
authority of the Noachide precepts.

It is evident from this outline, that the w^ork is to
be regarded as historical rather than philosophical, and
therefore, although Le Clerc's opinion of it may be well
founded, it does not follow that Selden is censurable for
not having performed what he did not attempt. That
critic says, " Selden only copies the Rabbins, and scarcely
ever reasons. His rabbinical principles are founded upon
an uncertain supposition of the Jewish tradition, tiiat God
gave to Noah seven precepts, which all the human race
was to observe. If this were denied the Jews would be
much at a loss to prove it. Moreover his ideas are very
imperfect and embarrassed." In answer to this it may be
observed, that as it was Selden's professed object to exhibit
Jewish law as laid down by the Jewish writers them-
selves, he was in some measure constrained to follow their
method, and certainly to deliver faithfully their laws and
opinions. Besides no one can deny that Selden has made



266 MEMOIRS OF

his work a valuable repertory of all that history or tradi-
tion informs us concerning the Hebrew institutions before
and after the Mosaic dispensation. On which account it
has been much commended by learned men both at home
and abroad, and it made a large addition to the reputation
he already possessed for indefatigable industry and pro-
found erudition. An abridgment of this work was
published by J. F. Buddoeus, professor of philosophy at
Halle in 1695 *.

* Aikin's Life of Selden, 108.



JOHN seldp:n. 267



CHAPTER IX.

THE MODERATE PARTY. KING RASH IN HIS CONDUCT. PARLIA-
MENT ACT ILLEGALLY. KING ATTEMPTS TO SEIZE FIVE OF THE

MEMBERS IN THE HOUSE. STRENGTHENS THE OPPOSITION.

SELDEN REFUSES THE LORD KEEPERSHIP. BREACH BETWEEN THE

KING AND THE PARLIAMENT WIDENS. — CIVIL WAR COMMENCES.

SELDEN'S STRENUOUS OPPOSITION TO AN APPEAL TO ARMS.

EPISCOPACY AND PRESBYTERIAL CHURCH GOVERNMENT. — SEL-
DEn's TRANSLATION FROM EUTYCHIUS. — NOT OPPOSED TO EPIS-
COPACY.

The moderate party in the parliament, which in this
country always eventually prevails, was unfortunately
weak in numbers, but was gradually increasing. Their
just fundamental principle was well expressed by a bar-
rister named Smith, who was one of their number, when
he warned the House of Commons that " prerogative and
liberty are both necessary to the kingdom, and, like the
sun and moon, give a lustre to the nation so long as they
walk at their equal distances, but when one of them
ventures within the other's orbit, like those planets in
conjunction they then cause a deeper eclipse,'*

To this band of germine patriots Selden belonged, and
it is gratifying to observe, that even in the hostile colli-
sion that was proceeding between the extreme parties, he
was enabled occasionally to secure respect to the rules



268 MEMOIRS OF

of justice and to legal authorities. Thus, when it was
debated whether the pay of certain officers, suspected of
plotting against the parliament, should cease, Selden
successfully reminded the House, that there was no judg-
ment, or even charge passed against them, therefore they
could not have incurred a forfeiture*.

This influence of the moderate party, and the natural
results of a continued progress in a course of reformation,
gradually reduced the strength of the partisans of extreme
change. The predominance of political reformers in
general, must be of temporary duration. Time always
reduces their numbers, until their party becomes a mi-
nority. Some will desert them because they act too
rashly ; others will withdraw their support because they



* Sir Edward Nicholas, Secretary of State to Charles the First, in
a private letter to this monarch, dated August, 1641, speaks more par-
ticularly of this transaction. He says, " Yesterday the Commons
ordered that the pay of Colonels Wilmot, Ashburnham, and the rest of
the soldiers that are questioned in parliament, shall be sequestered until
their business shall be heard and adjudged. And upon the discourse of
that business, Mr. Selden did then deliver his opinion with much con-
fidence, that by the act of oblivion, Mr. Percy and Mr. Jermyn, and all
the rest that are questioned with them, are freed and pardoned, which
he argued so strongly out of the words of that act, as the sages of the
House who oppugned his opinion did not give any reasonable answer
to. The House was not well pleased with him who delivered this
opinion. Some said it was not the intention of the House to pardon
them, but it was replied that laws are to be understood according to the
words of the acts, not according to the intention of the makers, further
than the words will bear." — (Bray's Memoirs, &c. of Evelyn, ii. 7.
Parliament. Hist, ix., 531.)



JOHN SELDEN. 269

proceed with too little vigour ; others will grow weary of
the constant efforts to improve ; and differences will divide
them both in determining what is faulty and what is
remedial. Thus vmagreeing among themselves, they fail
before a less numerous, yet more united party, until the
deficiencies, which time will render apparent in all human
institutions, or some violent outrage of the executive,
again unites them to effect changes which must be unani-
mously desirable.

At this period one rash proceeding of the king, goaded
by the constant vigilance and aggressions of the parlia-
ment, or acting upon the advice of incompetent counsellors,
completely deprived him of the advantage he was gaining,
united the declining party of the parliament, and rendered
him more than ever an object of distrust and dislike *.

Both these causes may have united in making Charles
adopt this measure, for the parliament had proceeded in
its course without any attention to the king's feelings,
and Clarendon says he acted upon the sole advice of Lord
Digby.

The House of Commons had especially directed its
attention against those who it considered the instruments
and advisers of the national misrule. The Lord Keeper
Finch, and Secretary Windebank fled from the prosecution
that was commenced against them. Many minor offenders
met with various degrees of punishment, and the king's

• Clarendon's Hist, of the Rebellion, i. 279.



270 MEMOIRS OF

chief minister, Archbishop Laud, was committed to
custody*. They sent commissioners to watch the king,
whilst executing the Scotch treaty ; they appointed
standing committees, during the recess, to attend to
various internal regulations of the country ; they ordered
the governor of Hull not to attend to the king's commands
unless signified to him by themselves ; and they resolved
to put the kingdom in a posture of defence without
consulting the king. These were excessive outstretches of
their power, and inroads upon the king's prerogative, but
they descended even to paltry interferences with the
management of the royal establishment that could produce
scarcely any other effect than an exasperation of those
whom it annoyed.

Whatever may have prompted the measure, on the
3rd of January 1642, the attorney general, Sir Edward
Herbert, exhibited articles of impeachment before the
House of Lords, against Lord Kimbolton, Sir Arthur
Haselrigge, and Messrs. Hollis, Pym, Hampden and
Strode. It charged them with endeavouring to deprive
the king of his regal power, and to exalt that of the

* Selden was nominated one of the committee to prepare his articles
of impeachment, but there is no reason to believe that he engaged in
that painful task. There were a sufficient number of talented and
professional men in the House, to prevent a necessity for him to
sacrifice the inclinations of friendship to his public duty. Neither
the Archbishop in his very particular diary, or any other authority
mentions Selden as being- employed in his impeachment.



JOHN SELDEX. 2?!

people ; with attempting to render the army disaffected ;
inviting a foreign invasion (that of the Scots) ; subverting
the rights of parliaments; and encouraging tumults
against it and the king. The lords attended to the
impeachment. The studies and trunks of some of the
accused were placed under seal, and on the same day, but
previously, the king sent a Serjeant at arms, to the speaker
of the House of Commons requiring him to deliver up
the five impeached members.

The whole of this proceeding was a tissue of error. It
was ill-judged to proceed at all ; it w^as illegal if the
offences were committed by the accused in parliament ; it
was illegal to proceed against the five commoners, other-
wise than by a trial by jury ; and the peers acted illegally
by at all entertaining the impeachment.

With becoming resolution the House refused to deliver
up its members so accused, but they were ordered to
attend daily, and his majesty was informed that his
message should be considered, as it was of great conse-
quence and concerned the privileges of parliament.
Charles, however, did not require their advice ; he had
resolved to adopt the suggestions of his own will. "Ac-
cordingly," says Rushworth, who was clerk of the House,
and an eve-witness, "when the five accused members
came this day (4th of January 1641), after dinner into
the House, they were no sooner seated in their places, but
the House was informed by one Captain Langrish, lately
an officer in arms in France, that he came from among the



272 MEMOIRS OF

officers and soldiers at Whitehall ; and understanding
from them that his majesty was coming with a guard of
military men, commanders and soldiers, to the House of
Commons, he passed by them with some difficulty to get
to the House before them, and sent in word how near
they were come. Whereupon, a certain member of the
House having also private intimations from the Countess
of Carlisle, sister to the Earl of Northumberland *, that
endeavours would be used this day to apprehend the five
members, the House required them to depart forthwith,
to the end that a combustion in the House might be
avoided, if the said soldiers should use violence to pull
any of them out. To this request four of them yielded
ready obedience, but Mr. Strode was obstinate, until Sir
Walter Earl, his ancient acquaintance, pulled him out by
force, the king at that time entering into the New Palace
Yard, in Westminster. As his majesty came through
Westminster Hall, the commanders, reformadoes t, &c.
who attended him, made a lane on both sides of the Hall,
through which his majesty passed, and came up the stairs

* This lady was a complete political intriguer, for secretary Nicholas
mentions her bringing information to the court party. — (Evelyn's Diary,
&c. by Bray, ii. 24.) However, in heart she was attached to the oppo-
sition. Sir Philip Warwick says that she was a busy stateswoman, at
first attached to Wentworth, but at this period to Mr. Pyra. He adds,
that " she was become such a she-saint, that she frequented their
sermons and took notes !" — (Sir P. Warwick's Memoirs, &c. of Charles
the First, 204.)

t Reformado. An officer retained in a regiment after his company
is disbanded. — (Ben Jonson, in Todd's Johnson's Diet.)



JOHN SELDEN. 27S

to the House of Commons, and stood before the guard of
pensioners and halberteers, who also attended the king's
person *. The door of the House being thrown open, his
majesty entered the House, and as he passed up towards
the chair, he cast his eye on the right hand, near the bar
of the House, where Mr. Pym used to sit, but his
majesty not seeing him there, for he knew him well, went
up to the chair and said,

*• By your leave, Mr. Speaker t, I must borrow your
chair awhile."

Whereupon the speaker came out of the chair, and his
majesty stepped up into it. After he had stood in the
chair awhile, and cast his eye upon the members as they
stood up uncovered, not discerning any of the five
members to be there, his majesty spoke as follows : —

" Gentlemen,

" I am sorry for this occasion of coming unto
you. Yesterday I sent a serjeant-at-arms upon a very
important occasion, to apprehend some that, by my com-
mand, were accused of high treason, whereunto 1 did
expect obedience, and not a message : And I must declare
unto you here, that, albeit, no king that ever was in
England shall be more careful of your privileges to main-

* Mrs. Hutchinson says, that the guard which came with Charles to
seize the five members consisted of about 400 gentlemen and soldiers,
armed with swords and pistols. — (Mem. of Col. Hutchinson, 76.)

f Mr. Lenthall.

T



274 MEMOIRS OF

tain them to the uttermost of his power than I shall be ;
yet you must know, that, in cases of treason, no person
hath a privilege ; and therefore I am come to know if any
of these persons that were accused are here ; for I must
tell you, Gentlemen, that so long as these persons that I
have accused for no slight crime but for treason, are here,
I cannot expect that this House will be in the right way
that I do heartily wish it ; therefore I am come to tell
you that I must have them wheresoever I find them."

The king then inquired of the speaker, who was
standing below by the chair, '* whether any of those
persons were in the House? Whether he saw any of them,
and where they were ? " To which inquiries the speaker,
falling on his knee, answered,

" May it please your majesty, I have neither eyes to
see, nor tongue to speak in this place, but as the House
is pleased to direct me, whose servant I am here ; and I
humbly beg your majesty's pardon that I cannot give
any other answer than this to what your majesty is
pleased to demand of me."

" Well," continued the king, again addressing the
House, " since I see all the birds are flown, I do expect
from you, that you will send them unto me as soon as
they return hither. I assure you, on the word of a king,
I never did intend any force, but shall proceed against
them in a legal and fair way, for I never meant any
other.

" And now, since I see I cannot do what I came for, I



JOHN SEI,DEN\ 275

think this is no unfit occasion to repeat what I have said
formerly ; that whatsoever I have done in favour, and to
the good of my subjects, I do mean to maintain it. I
will trouble you no more, but tell you I do expect as soon
as they come to the House, you will send them to me ;
otherwise. I must take my own course to find them."

The king having concluded his speech retired from the
House, which was in great disorder ; and many members
cried out aloud, so as he might hear them, " Privilege !
Privilege I The House forthwith adjourned until the
next day at one o'clock *."

In consequence of this violent and illegal procedure, the
opposition party gained an ascendancy superior to that
from which they had been declining. The city was
re-aroused to declare and even arm in their defence, and
this rekindled feeling was communicated to and expressed
by the country. Four thousand of the Buckinghamshire
freeholders, Hampden's neighbours, rode to London,
and expressed their readiness to die in defence of the
parliament.

The commons appointed a committee to sit within the
precincts of London, protected by a strong guard of
citizens, to decide finally upon the remonstrances and
reports prepared by other sub-committees. To one of
these Selden was nominated, to whose care was consigned
an examination of the violation of parliamentary privi-

* Rushworth's Collections, . Parliament, Hist., x. HUi. Cla-

rendon's Hist, of tlie l?cb('llion, i. 281. Autohiograpliy, 4(i.

T 2



27G MEMOIRS OF

leges, and the framing of a petition to the king on the
subject.

Charles, however, persisted in the course upon which
he had entered, and on the following day a proclamation
was drawn vip, directing the apprehension of the five


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Online LibraryGeorge William JohnsonMemoirs of John Selden : and notices of the political contest during his time → online text (page 17 of 23)