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

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denying ordinance, which in 1645, forbade the members to
hold any office, civil or military. It is certain he did not
retain it in August, 1651, for in that month Whitelocke,
being one of the lords commissioners of the great seal,
reported from the council of state, that the abolition of

* Parr's Life of Usher. f Whitelocke's Memorials.



JOHN SELDEN. 309

the court of wards had taken away the profits attached
to the office of the keeper of the Tower records ; and
being consequently in danger of neglect, the House of
Commons resolved that the Master of the Rolls for the
time being should have the care of them *.

In February 1644, a subscription to the solemn league
and covenant was imposed by the parliament upon all
who were within its influence. This celebrated compact
pledged its subscribers to strive for the preservation
of the reformed religion, and for the union of the
churches of the three kingdoms ; " to endeavour to
extirpate popery, prelacy (that is church government by
archbishops, bishops, their chancellors and commissaries,
deans, deans and chapters, archdeacons, and all other
ecclesiastical officers depending on the hierarchy), super-
stition, heresy, schism, and profaneness ;" to preserve the
rights of parliament, the liberties of the kingdom, and the
king*s person and authority, that it might be manifest
they had " no thoughts or intentions to diminish his
majesty's just power and greatness;" that they would
strive to discover the disaffected, and to preserve peace ;
that they would be active in supporting this engagement,
and that they would endeavour to be more truly reli-
gious t. To none of these i)ledges, hut that relating to
episcopacy, could any rational objection be raised. It is
certain, from the opinions related at p. 289, that Selden,

* Parliamcnf. IIi>(., .\ix. -iUi). 1 H'i^l- xii. u"Ju.



310 MEMOIRS OF

was then friendly to that form of church government, yet
he subscribed to the covenant, which engaged him to
strive for its abolition. This compels us to adopt one
of two conclusions, namely, that, in accordance with
Clarendon's character of him, this was an instance of his
sufficient indulgence of his own safety ; or that he con-
sidered a presbyterial form of the church establishment
best suited to the democratic government then esta-
blishing. We may justly adopt the latter conclusion,
because we have seen that he did not shrink from suffering
in the maintenance of his own ideas of right; and we
have his very marked opinion, recorded by the editor of
his confidentially expressed sentiments, tliat " bishops do
best stand with monarchy." It is indeed obvious, that a
peerage, lay or ecclesiastical, does not assort well with a
government that is neither monarchical nor aristocratical.
In a democracy, founded upon general equality, the
superiority of nobility is inadmissible. The probability
that he was actuated by this opinion, is strengthened by
the fact, that although the covenant was ordered to be
taken by all the kingdom in September 1643, he did
not sign it until the following February, when it was
evident that the cause of monarchy was lost*. Selden
undoubtedly most approved of a monarchical form of
government, and struggled firmly in its defence, but the
majority of the nation thought otherwise, and our own

* Rushwortii's Collections, Part iii. 481.



JOHN SELDEN. 311

judgments, independent of the confirming opinions of
Vattel and other authorities, assure us, that the will of
the majority should prevail. Selden submitted to its
decision, and, when he signed the covenant, employed his
judgment, like a good citizen, in promoting measures to
assist its beneficial operation.

At this period occurred the attainder of Archbishop
Laud, who was at once the Mec£enas and Sejanus of this
reign. Physiognomy does not play us false in offering
this man's face as an index of his character. Vandyke
pourtrayed his features, and in the portrait which yet
survives, the diminutive eyes, contracted forehead, pointed
nose, and compressed tout-en-seinble, warn us to expect
that littleness and cunning — that acuteness and meanness
— which were his mental characteristics. History records
that he aimed to effect his measures by tyranny and
persecution, and that he finally sought for safety in
intrigue. He trembled at the inauspicious prognostics of
omens and dreams, and though without fear he could
commit to prison those who conscientiously dillercd with
him in opinion, he quailed because his picture fell from
its hanging, and because he dreamed his teeth were
starting from their sockets !

Notwithstanding the great demerits of Laud, and his
unfitness to be the minister of government, over a free
and enlightened people, it seems, from the evidence
admitted by all parties, that he was unfairly tried and
unjustly condennied.



312 MEINIOIIIS OF

He was unfairly tried, because his peers and judges did
not pay that attention to his cause, during its progress,
that is due from every judicial functionary to every
defendant, upon every charge, however trifling, and much
more when it involves his life. " My hopes under God,"
said the archbishop in his Diary, " were upon the Lords,
yet, ^vhen my trial did come on, it did somewhat trouble
me to see so few lords in that great House; for at the
greatest presence that was any day of my hearing, there
were not above fourteen, and usually not above eleven or
twelve. Of these, one third part, at least, each day took,
or had occasion to be gone before the charge of the day
was half given. I never had any one day the same
Lords all present at my defence in the afternoon, that
were at my charge in the morning. Some leading lords
were scarce present at my charge four days of all my long
trial, nor three at my defence ; and, which is most, no one
Lord was present at my whole trial, but the Right
Honourable the Lord Gray of Werk, the speaker, with-
out whose presence it could not be a House." When the
bill of attainder passed against him, there were only six
peers present*.

He was unjustly condemned, because there were only
fourteen peers present when they finally voted him guilty
of endeavouring to subvert the laws ; to overthrow the
Protestant religion; and that he was an enemy to parlia-

* Heylin's Life of Laud, 494.



JOHN SELDEX. 313

ments. The consequences of that dereliction of their
duty by his judges, however, is upon their own heads ;
and no prisoner can be rescued from the possibility of
having such delinquents to decide his fate. But in this
case, after the peers had so voted, they consulted with
the twelve judges, and they unanimously declared, that
though guilty of all the charges, they did not amount to
treason, by any known or established law of the land.
Yet the House of Commons, as in the case of the Earl of
Strafford, having passed a bill of attainder against the
archbishop, the Lords similarly assented to it, and on the
10th of January, 1644, he was beheaded on Tow^er-hill,
in despite of the king's pardon, which he pleaded.
Affording another testimony that tyranny and disregard
of the laws are not crimes peculiar to kings.

It is true, that, having disclaimed obedience to Charles,
they were not to be expected to pay much attention to his
judicial determinations ; and it is also true that this
clause in the Statute of Treasons (25 Edward 3, c. 2,)
permits that " if any case supposed to be treason, which
is not specified in this act, doth happen before any judge,
the judge shall tarry without going to judgment, till the
cause be shewn and declared before the king and bis
parliament, whether it ought to be judged treason."
True it is, that this may be pleaded in excuse for the
course adopted by the parliament with relation to Laud,
but it would always be better for such high i)o\vers so to
proceed, that they should require no apology for tlicir



314 MEMOIRS OF

acts. They who would command our reverence for
their justice, must not persist in traversing the very line
which is barely legal. A master in the science of laws
has laid down an axiom coming with conviction to every
mind, that, if the crime of high treason is indeterminate,
this alone is sufficient to make a government degenerate
into arbitrary power*; and when this is aggravated by
the enactment of bills of attainder, which are nothing
less than ordinances for punishing men for disregarding
laws that did not exist until after their offences, no
greater concentration of tyranny can be imagined. It
would be much wiser to let the offender pass unpunished,
for " the escape of one delinquent can never produce so
much harm to the community, as may arise from the in-
fraction of a rule, upon which the purity of public justice,
and the existence of civil liberty, essentially depend t."

The archbishop had cause to complain of injustice in
various forms. He was committed to custody on the
18th of December, 1640, and was allowed to remain in
prison until the 12th of March, 1643, before he was
brought to trial. His papers, and other means of pre-
paring his defence, were also withheld.

Mr. Pym was intended to conduct this prosecution,
as he had that of the Earl of Strafford. He carried up
the impeachment to the House of Lords, and enforced its



* Montesquieu L'Esprit des Loix, 1. xii. c. 6.
t Paley's Moral Philosophy, 1. vi. c. 8.



JOHN SELDEN. 315

charges, with his usual ability ; but before the day of
trial arrived, he was sinking beneath his task of public
service, and he rested in the grave about a month pre-
viously to the archbishop.

It was the misfortune, or the crime, of Sir Henry Vane,
to be the only witness to criminal words spoken at the
council table by Laud, as he had been upon a similar
occasion against Straiford. " For the honour of Sir
Henry Vane," said the archbishop in his defence, " let
me not forget that he is a man of some years. Memory
is one of the first powers of man on which age works, yet
his memory is so fresh, that he alone can remember words
spoken at a full council table. No person of honour re-
members them but himself. But I would not have him
brag of it, for St. Augustine says that some of the worst
of men have great memories, and are so much the worse
for having them. God bless Sir Henry*."

It is past all just doubt, that a majority of those who
prosecuted and condemned Strafford and Laud were
actuated by the best motives. They estimated them
truly as arbitrary ministers ; as talented, influential men,
and above all others, the most dangerous opponents of
the just freedom of the nation ; but it would surely have

* StateTrials, i. 8 26, fol. ed. Cl.irendon says decidocUy, tliat to
gratify his revenge, Sir Harry Vane sacrificed his honour and faith to
effect the ruin of the Earl of Straiford. — (Hist, of Ilehelh(Mi, ii. lii'S,
fol.) If he perjured himself to destroy the one, who will crtdit his
testimony against the other?



316' MEMOIRS OF

been wiser and more just to have imprisoned them until
the contest for liberty had ceased. If the contest termi-
nated in its favour, those ministers might then be re-
leased without being capable of injury ; and if the cause of
liberty failed, it uould not have been to the disadvantage
of its champions that they had been merciful. However,
those champions thought that they did but their duty in
taking away, beyond the reach of accident, the power of
Strafford and Laud, to do injury to their fellow country-
men ; and they may be excused, if in a conflict so
momentous, and in which there had been so much suffer-
ing, they erred on the side of safety. Though obliged
to condemn their error, let us mitigate our censure, by
reflecting that they were carrying on a warfare to secure
the liberties we are now enjoying.

With the management of Dr. Laud's attainder, Selden
does not appear to have been concerned. His name does
not occur in any of the debates which it occasioned, and
this admits the conclusion, that though he w^ould not
throw his weight into the scale against his friend, yet he
could not raise his voice conscientiously in his favour.
This did not arise from a fear to oppose the predominant
powers, or because he had become inactive even in the
cause of justice ; his past efforts and sufferings shelter
him from the first suspicion, and from the second by the
fact that when he understood that in consequence of
Dr. Laud's attainder, the parliamentary commissioners
had seized upon his endowment of the Arabic Professor-



JOHN SEI.DEN. 317

ship at Oxford, he exerted himself until he obtained its
restitution.

The endowment of the Arabic professorship was an
estate of about forty pounds per annum value in Berk-
shire. Mr. Greaves acquainted Selden with the injury
done by its seizure to their friend Dr. Pococke, and
Selden in reply expressed his sense both of the injustice
and scandal of the proceeding, as well as his conviction
that the commissioners could have no countenance for it
from the order of the parliament, for the sequestration
appointed by that order only related to individuals, and
could not affect corporations. Having made himself
thoroughly acquainted with the case, he earnestly exerted
himself to obtain restitution, which he at last effected
about the middle of 1647; Dr. Pococke thus being
deprived of his stipend for about three years *.

In 1644 appeared Selden's work " De Anno Civili
veteris Ecclesiae, seu Reipublicae Judaicae, Dissertatio."
It begins with a preface, in which is shown the impor-
tance of such a chronological inquiry to the correct
understanding of the Scriptures; and the necessity of
resorting to the best sources for elucidation, namely, tlie
writings of the two sects of Talmudists, or traditionalists
of the Jewish church, and the Karaites, or scripturists.
In the numerous chapters of the work are discussed all the

* Twell's Life of Pococke, i. 100. E.l. ISKi.



318 MEIVrOTUS OF

j)oints relative to the Jewish calendar, its calculations of
months, lunar ])hases, &c. The whole exhibits a pro-
fundity of learning, but it is not without deficiencies and
mistakes, arising chiefly from a want of authorities.
These were pointed out by J. Gottfred Schuppart*.

In April 1 645, the parliament appointed a committee of
six Lords and twelve Commoners to conduct the business
of the Admiralty. Selden was named to be one of these
commissioners ; but before they could enter upon the
duties of their office, the plan, probably in consequence
of the ordinance to be next mentioned, was altered, and
the management was vested in three selected from the
eighteen at first appointed. Selden was not one of this
triumvirate t.

In the same month was passed " the self-denying
ordinance" that secured to Cromwell an easy passage to
the throne, for " Protector' was but King writ large.'*
His party, for the anti-monarchists were now divided
among themselves, by deceiving many as to the tendency
and effect of this ordinance, obtained a majority in its
favour ; and it was tliereby enacted, that all members of
the parliament should be excluded from any office, civil or
military. In consequence the Earls of Essex and Man-
chester, Sir William Waller and other commanders of the
parliament's army, were compelled to resign. Cromwell

* Aikin's Lives of Selden and Usher, 131.
t Whitelocke's Memorials, 137.



JOHN SELDEN. 319

alone obtained, through his friends' exertions, leave to
remain for short successive periods with the troops, and
having succeeded in officering these with his own partisans,
and ingratiating himself with the men, he finally obtained
them as the means whereby he subverted the power that
had so unwittingly ministered to his rise. More artful
speeches are nowhere to be read than those with which
Cromwell beguiled the parliament*. Essex, Whitelocke,
and others, saw through his Machiavelian practices, and
counselled together how they might effectually oppose
the enactment of the ordinance. They even considered
whether they should impeach himf ; but Cromwell, than
whom no man knew better how to make use even of
his enemies, diverted them from or thw^arted all their
plans.

In the June of this year the House of Commons
ordered that such of their members as had lost the benefit
of their estates during the war, or were in such necessity
that they could not without some supply attend upon
the House, should have an allowance of four pounds per
week. We have a list of nearly seventy members who
received this allowance. Among them are Whitelocke,
Pym, Dryden, Sir Martin Lister, Sir Philip Stapylton
and others well known in the literary and political annals
of the period. Selden was not one of these pensioners t.

* Parliament. Hist. xiii. 370, &c.
■f Whitelocke's Memorials, 111.
I Parliament. Hist. xiii. 404.



320 MEINIOIRS OF

But in the following year, 1647, a vote passed the House
of Commons, giving to him and others who had illegally
suffered in the third year of Charles's reign, whilst oppos-
ing the arbitrary measures of that period, five thousand
pounds each, and revoking all sentences then passed against
them *. Authorities differ as to whether Selden received
the money thus voted: Wood says "some say he refused
it, and could not out of conscience take it ;" but that he
received a part of the sum is nearly certain, for in the
Journal of the House of Commons there are two entries
ordering payments of the moieties. The first order is dated
the 11th of May 1647, and the other the 11th of November
of the same year. If the first moiety had not been accepted,
why order the payment of the second? Walker says that
Selden received half the money voted to him t. It would
have been no disgrace if he had taken the whole that his
country considered he merited for his losses and sufferings
in her cause.

All history concurs in Selden's observation that Eccle-
siastics as a body are too apt to strive for the acquisition
of political influence. From the earliest introduction of
Christianity to the period of the Reformation, there had
been one continued struggle of the Church to obtain a

* In 1640, the House of Commons felt such resentment at the
refusal to bail Selden and his fellow- prisoners, that it was seriously
debated whether they should not have a compensation given them out
of the estates of the Judges, who had decided against them.— (White-
locke's Memorials, 37.)

I Hist, of Independency, 108. Ed. IGGO.



JOHN SELDEN. 321

predominance of civil power. Seklen, in common Avith
every legislator who is wise enough to learn from the past,
jealously opposed all attempts to increase that power which
the Reformation had subdued. In 1645 it was proposed
to empower the clergy of the new Establishment to exer-
cise, with no other controul than their own discretion, the
ecclesiastical punishments of excommunication and sus-
pension from the Sacrament. Selden successfully opposed
this innovation, for the Parliament refused to confer upon
them such judicial powers.

Selden, in the course of his arguments against the
measure, reverted to facts, and employed reasoning that
may be advantageously attended to by many of the subor-
dinate clergy of our times. He observed that "for four
thousand years there was no sign of any laws to suspend
persons from the performance of their religious exercises.
Under the Mosaic dispensation every sinner was especially
directed to offer his sacrifices because he was a sinner; and
no priest or other authority had power to restrain him
unless his impenitence could be shown, which was difficult
to be done. It is true that strangers were forbidden the
passover, but they were Pagans, and this is not now the
question, but whether protestants are to be kept from the
sacrament, or other part of protestant worship. No divine
can show that for this there is any command. The passage
in scripture that is quoted as directing excommunication
(* put away from among yourselves that wicked person,*

Y



322 MEMOIRS OF

1 Corinth, v. 13) is a corruption of the Greek. It should
be TO TTovrjpov, put away that evil from among you. There
is a new edition of Theodoret published that has this
correctly. It is true that the Christians, before the civil
state became Christians, did by covenant and agreement
determine certain rules of conduct, and he that did not
observe what had been agreed upon, should come no more
amongst them, that is, be excommunicated; but if, after
Christ had suffered, the Jews had become Christians, the
same freedom would have been permitted to the sacrament
as had been allowed to their sacrifices.

" The other passage, which is quoted from the gospel of
St. Matthew (' tell the Church'), is but a weak ground
upon which to raise excommunication, especially from the
sacrament, for when those words were spoken the sacrament
was not instituted. The Jewish Sanhedrim sat in the
Temple at Jerusalem, and the meaning of that passage is,
that if, after once or twice admonishing a brother, he
remained unreclaimed, he was to be taken thither. Excom-
munication was first adopted by Pope Victor, 180 years
after Christ, and then in a sectarian quarrel about the
observance of Easter, which demonstrates it to be of human
invention. When Constantino became a Christian he
acquired a devotion to the clergy that made him allow
them to be judges of all things, but that did not continue
more than three or four years, and then their interference
was restricted to religion. All jurisdiction belonged to him.



JOHN SELDEN. 323

and he scanted them out as much as he pleased. Tliis has
continued ever since. Ecclesiastics now excommunicate
in matters concerning adultery, tythes and wills, which
is the civil punishment the state allows for such offences;
but if a bishop excommunicates a man for what he ought
not, the judge has power to remove the excommunication
and to punish the bishop. If ecclesiastics have such
jurisdiction from God why do they not excommunicate for
murder, &c.? As the civil power has taken away all but
three things, why may not these be also taken away?
If they were, the Presbyters would be quiet* ."

In the same year, 1645, during a debate upon an
ordinance for discharging the wardship of the heirs of
Sir Christopher Wray, who had died in the service of the
Parliament, Selden, Maynard and others so displayed to
the House of Commons the origin, abuses, and oppressions
incident to wardships, that it gave rise to an order for the
abolition of them, and other remnants of feudal tenures t.
It has been justly said that a monarchical government is
best calculated for active measures, but in this instance a
democracy rivalled it in promptness. The vote was passed
by the Commons, sanctioned by the Lords, and ordered to
be printed and published in the course of one day *.

In the August of this year, upon the death of Dr.
Eden, Master of Trinity Hall, Cambridge, Selden liad the

* Whitelocke's Memorials. Table Talk, s. Excoiuimiiiiration.
t Whitelocke's Memorials, 199.
J Parliament. Hist. xiv. 264.

Y 2



324 MEMOIRS OF

honour conferred upon him of being unanimously chosen
his successor. It adds to the worth of this testimony
that some of the members of both Houses of parliament
approved of his preferment to the office, yet he was the
active supporter of no party, and that at a time when
an opponent was seen in every one who was not a violent
coadjutor. The following extracts from the letter to Selden,
announcing his election, show the rational motives which
actuated the electors.

" From the first we chose you to the Mastership of
Trinity Hall, because we thought that it was incumbent
upon us to provide not only a Master to our College, but
an ornament of literature, and a guardian and patron for
the University. We trust that you will suffer your will,
which has hitherto flowed for our advantage, to continue
to direct and confirm our welfare. In your power it rests
whether we shall have to lament our loss. If your modesty
successfully opposes, we will appeal to your humanity.
Grant then that it may be as we hope and ardently desire
— let us forthwith hail you as our guardian, that they who
were preserved under Eden, may continue to be happy
under Selden." As a further proof of their anxiety to
have him as their President, the Fellows prematurely
informed the Chancellor of the University of the choice
they had made, and requested his ratification of their
election.

Selden declined this office, as he had studiously declined
all other honours that had sought his acceptance ; and this



JOHN SELDEN. 326

rejection did not arise from any dislike to the clerical


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Online LibraryGeorge William JohnsonMemoirs of John Selden : and notices of the political contest during his time → online text (page 20 of 23)