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

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body, as was imagined by Dr. Wilkins, for Trinity Hall
is a foundation for the study of civil and canon law, and
its fellows are entirely of that faculty. Dr. Eden was
eminent as a civilian, and was a member of the long
parliament. Better reasons for his refusal may be found,
though not recorded, in his age, his infirmities, his love of
literary leisure, and his close connection with Oxford, his
alma mater.

Although Selden declined this union with the University
of Cambridge, he availed himself of every opportunity to
show his care of its interests, united as they were with the
interests of learning. Dr. Bancroft, who died in 1610,
had left his library to the archbishops, his successors in
the see of Canterbury, on condition that the one who
succeeded him should give security that he would leave it
entire and without embezzlement ; but in case of refusal
to give such security, he bequeathed it to Chelsea
College*, then building, on condition that that institu-
tion should be finished within six years after his decease.
If this did not occur, he left his library to the University
of Cambridge.

Whether his successors, Abbot and Laud, gave the

* Chelsea College appears to have been founded by Dr. Sutcliffe,
Dean of Exeter ; to consist of a provost and twenty fellows, who were
to answer all sectarian publications written against the Protestant
religion, or its episcopal government. — (Kennet's Complete Hist, of
England,ii. 685.)


security required, does not appear. However, the books
remained at Lambeth, until the order of bishops being
abolished, and Chelsea College abandoned, as more likely
to create contention than assuage sectarian animosity,
Selden suggested to the University that their right to the
books had arisen on the contingent remainder. It con-
sequently presented a petition to the House of Lords, and
Selden pleaded for them so successfully, that the Uni-
versity obtained an order not only for the books of
Dr. Bancroft, but those of his successor, Dr. Abbot*.
Archbishop Juxon, after the Restoration, demanded their
restitution, and in the time of his successor, Dr. Sheldon,
they were restored to the Lambeth library!. Selden's
object, therefore, was attained — their preservation entire
during the prevalence of that neglect of literary property
which disgraced the anti-monarchical period.

Selden's exertions for the protection of learning and its
nurseries, the universities, were strenuous, general and un-
remitting. Mr. D'Israeli remarks, that the republicans of
England at that period, like those of France in the next
century, were infected with a hatred of literature and the
arts ; " the burning of the records in the Tower, he adds,
was certainly proposed ; a speech of Selden's, which I
cannot 'immediately turn to, put a stop to these incen-

* For this and other services, the University returned Selden thanks
in two letters given by his biographer, Dr. Wilkins.
t La Neve's Lives, &c., of Protestant Bishops, 87.


diaries*" It is certain that a similar spirit rendered
them inimical to the privileges of the universities, and
made them desirous to reduce, if not entirely to confiscate,
their revenues. Contrary to his habits of retirement, and
conscious of the additional protecting power it would
impart, Selden obtained, in 1647, the appointment of
one of the parliamentary visiters of the University of

His guardianship had soon to be exercised, for Wood
relates that Bradshaw proposing, in harsh terms, an
immediate visitation, Selden successfully objected to the
injustice of such a proceeding before the University had
provided itself with legal assistance. The question in
dispute was whether the University should admit the
visitatorial power of the Parliament. By the aid of
Mr. Prynne they reduced the controversy to a question
whether the king had previously had the right of being
visiter, for if it had been propounded, " whether the
kingly power was not virtually included in the parlia-
ment?" no lawyer would have dared to argue for the
negative. It was owing to the exertions of Prynne and
Selden that counsel were allowed to the University t.

Dr. Gerard Langbaine, provost of Queen's College,
Oxford, in a letter dated March, 1648, thus animatedly
expresses the sense of his exertions in its favour, that was
entertained by the university. " We are all abundantly

* Curiosities of Literature, Second Series, iii. 446.
t Walker's Sufferings of the Clergy, &c., i. 130.


satisfied in your unwearied care and passionate endeavours
for our preservation. We know and confess

Si Pergama dextra
Defendi poterant, etiam hac defensa fuissent.

" Of this we are confident, that (next under God's) it
must be imputed to your extraordinary providence, that
we have stood thus long : you have been the only belli
mora, and

" Qiucquid apud nostrse cessatum est maenia Trojae,

" (I cannot add ^nea^que, for you had no second)

" manu victoria Gx'aium

By your good acts, and prudent manage, our six months
have been spun into two years, and it has been thus far
verified upon us, by your means, ?iec capti pottiei'e

In the Journals of the House of Commons, of the date
of May 1645, there is an order " for Mr. Selden to bring
in an ordinance for regulating the Heralds' Office, and
the heraldry of the kingdom." The College of Heralds is
subject to the control of the Earl Marshal of England, in
whose court all disputes concerning their craft are deter-
mined, and as this dignity and court had been abolished
by the parliament, Selden was required to propose some
substitute for its superintending jurisdiction.

* Leland's Collectanea, by Hearne, v.282.


The knowledge of such subjects displayed by Selden
ill his " Titles of Honour," probably pointed him out as
fitted for this task, and although without pretensions to
armorial distinctions, yet he had not that petty proneness
of a weak mind to esteem as valueless that of which it
has not the possession. Selden duly estimated the value of
temporal dignities and their attendant pageantry, without
yielding in any degree the just claim of our nature, that
there is a gradation of moral as well as hereditary dignity.
" The king," said Selden, " cannot make a gentleman of
blood ; but he can make a gentleman by creation. If
you ask which is the better of these two? — civilly, the
gentleman of blood — morally, the gentleman by creation
may be better ; for the other may be a debauched man,
this a person of worth."

The gossiping Aubrey expresses his wonder that
Selden should not have obtained a coat of arms ; but we
should rather approve that good sense that made him
content with his own plumage. Selden, says Dr. Heylin,
chaplain to Charles the First, might, as was generally
believed, have chosen his own preferment at court, but
he regarded his literary pursuits more than all other
employments ; and no one will wish his choice had been
different. One cannot help feeling a satisfaction that he
died a commoner. There are some bright names in our
national history, as Boyle, and Milton, and Shakspeare,
and Locke, before which even the addition of " Mr." is
an offensive surplusage. They are of an exalted rank in


every man's esteem, with which the herald has no concern.
For a similar reason we must all feel that no title could
add dignity to the plain name of John Selden. We may
feel proud that he was entirely one of us, and still prouder
to coincide with the opinion of Dr. Heylin, that it is " a
name that stands in need of no titles of honour*."

In 1646, Selden published his work entitled "Uxor
Ebraica ; seu de Nuptiis et Divortiis ex Jure Civili, id est,
Divino et Talmudico, veterum Ebraeorum, Libri tres."

In his former work on the Jewish natural and inter-
national law, he had treated of everything relative to the
Hebrew matrimonial regulations that came under those
two heads. In this work he completed the subject by
adding all that relates to it from what he terms their civil
law, that is, the matrimonial rites, customs, and institu-
tions proper to their nation, and derived either from the
Levitical law, or from their ancient customs, and the
ordinances of their rulers. He says " I shall consider my
task as performed if I have duly explained the particular
causes from which, by this law, marriages were either
prohibited, enjoined, or permitted ; also the solemn forms
and circumstances of contracting them, the nuptial rites,
the mutual duties of the parties, and the rules of divorce."
He further enumerates among the particulars of his work,
what he calls the stupendous doctrines of the Karaites
respecting incest ; and incidental notices of many things

* Life of Laud, ^321.


relating to the modes of contracting and dissolving
marriages among Pagans, Mahomedans, and Christians in
the East and West, which have either been derived from
Jewish customs or appear to resemble them.

From this view of the materials of the " Uxor
Ebraica," it will be seen that it ranks with the most
curious and interesting of his publications, and was
accordingly received by the learned with merited applause.
Another edition of it was printed at Frankfort, in the
year 1673 *.

In 1647, Selden edited an edition of " Fleta." This
work, says Lord Coke, was written by some learned lawyer,
who being committed to the Fleet Prison, had leisure
there to compile it, and concealed his name, as he states
in the preface, by calling it after the place of his confine-
ment. It is divided into six books, of which the first
treats of the crown pleas ; the second gives a copious and
curious account of the officers of the king's household, &c.
The other four books are more exclusively occupied with
details of our national law.

This work was found in a very ancient manuscript in
the Cotton Library!, and Selden says it was then the
only one known to be existing. The booksellers having
determined to publish it, employed a transcriber so careless
or inefficient, that, upon comparing it with the original
manuscript, many hundred errors were discovered, and

* Aikin's Lives of Selden and Usiier, 138.
t Cotton MSS. Julius, H. 8.


after all, the edition was very inaccurate. To it Selden
prefixed a dissertation, which was subsequently translated
by Mr. R. Kelham, and an extract from whose copious
title-page will give an epitome of its contents. According
to this it contains " many curious particulars relating to
those ancient authors on the laws of England, Bracton,
Britton, Fleta and Thornton ; showing what use was
made of the imperial law in England, whilst the Romans
governed here ; at what time it was introduced into this
nation ; what use our ancestors made of it ; how long it
continued ; and when the use of it totally ceased in the
king's courts at Westminster."











We have now arrived at the period of the concluding
political efforts of Selden's life; efforts that were admir-
ably consistent with the temperate opinions which had
guided him through those times of extreme discord and
ultra-politics. Every vote and action of his parliamentary
career unite as an index of his wishes and thoughts
respecting the national government, and tell us as plainly
as if he had copied for us the tablets of his heart, that
abhorring the illegal measures of Charles, and persuaded
that of the two contending parties the parliament was
least in error, he yet desired the establishment of a duly-
restrained monarchy.

During the contest in 1()47, between the Presbyterian
party of the parliament, and the independent portion that
joined the army, Selden apj)ears to have sided with the


former. His name is not in the list of the latter, who
signed an engagement to support the army *. On the
11th of December, in the same year, after the members
had again vmited, Selden went up with a message to the
Lords from the Commons, desiring their consent to four
bills, and, in the event of such concurrence, that they
might be presented to his majesty for his assent. These
bisll were concerning the management of the army and
navy ; for justifying the proceedings of parliament in the
late war ; concerning the peerage and the adjournment of
both Houses t. When the Scotch commissioners desired
that the above named bills might be communicated to
them, Selden again appeared at the bar of the House of
Lords, with two resolutions, vindicating, from such inter-
ference, the independence of parliament J.

In this last effort to effect a reconciliation between the
king and the parliament, we may readily conceive that
Selden was active and earnest ; and certainly no person
was more likely to succeed in this effort, than he who was
respected and trusted by all parties.

Under any circumstances it would occur that the
propositions of the parliament would endeavour to secure
to it safety and influence, and they would be the more
strict and more careful because there could be little confi-
dence in the king's sincerity. His private papers, which
had been taken at the battle of Naseby, and which the

* Parliament. Hist, xvi. 244. t Il^id- 403. J Ibid. 429.


'*Eikon Basilike" mentions without denying that they
were genuine, declared unequivocally, that though he
called the parliament by that name, yet in his conscience
he did not hold it to be one, nor should he, in the event
of success, treat it as such. It therefore behoved that
assembly to deprive him by every precaution of the power
to harm them. To effect this, they proposed, in the four
bills just mentioned, that the military power should be
entirely under the management and controul of the
parliament for twenty years ; and that the raising or
maintaining any other troops should be illegal. Subse-
quently the consent of the three estates should always be
requisite to the management of the national military.
That all proceedings and declarations against any member
of the parliament for his conduct during the late war were
illegal. That all titles of honour conferred since the
20th of May, 1642, the day the lord keeper deserted the
parliament, should be void. And that the parliament
might adjourn itself at any time, and to any place that it
preferred. Besides these there were some accompanying
propositions for sequestrating the estates of certain of the
royalists, and others for the establishing a Presbyterian
form of church government, &c.

That these were hard terms for the king to accept no
one will dispute, but it is quite as certain that to many of
them he would not object ; that the parliament, if they
acted consistently, or with regard to their own safety,
could not require less; and that, situated as he was, he


could not reasonably expect more favour *. The hardest
article was, that which called upon him to sanction the
forfeiture of the estates of those who had supported him.
However, to this he does not object in his reply, but
chiefly that such propositions deprive him of all
sovereignty, and concludes by expressing an unalterable
resolution not to treat with the parliament, unless he can
do so personally f.

Both Houses, in the hastiness of anger, passed an
ordinance that it should be high treason to propose any
further treaty with the king ; a vote violent, unjust and
absurd, for though they might have a majority against
such communication, they had no right to impose silence
upon those who entertained a different opinion. Clarendon
says that the agreeing to that " monstrous declaration,"
caused many of the members to withdraw themselves from
an attendance upon parliament t It is but justice to
observe that they rescinded that ordinance soon afterwards,
and evidently would have concluded terms with the king,
if the majority of those members who were favourable to
such agreement, had not been forcibly expelled by Crom-
well's party, and thus a predominance secured to those
who opposed it, and who eventually brought the king
to his death.

* The king- was now a prisoner in Carisbrooke Castle,
t Parliament. Hist. xvi. 483,

X History of Rebellion, v. 94, 8vo. ed. There is little doubt of
Selden being- among these seceders.


Seidell was not among those members who were im-
prisoned or expelled by the army, nor yet among those
who continued to assume the office of legislators. He
therefore must have voluntarily \vithdrawn himself when
he saw that the military were determined to subvert the

There is scarcely room to doubt that at this last period
of the struggle, the king might have saved his life and
regained his throne. The Presbyterians having a majority
in the parliament, and supported by the city of London
and by the Scots, openly avowed themselves to be deter-
mined against any religious toleration. The independents,
who chiefly constituted the English army, remonstrated
against this, and finding their petitions disregarded,
Cromwell and Ireton, their most influential officers, offered
terms to Charles. However he fled from them, and
became a prisoner of the parliament, whose offers, we
have already stated, he had similarly rejected. All con-
temporary authorities agree, that he now entertained the
vain idea, that he was important and necessary to the
success of either party, and offending both by his haughti-
ness, insincerity, and duplicity, whichever triumphed, he
could be trusted by neither. Unfortunately for him, the
independents attained the superiority, and having ex-
pelled from the remaining part of the parliament all who
were opposed to their plans, the residuum formed that
" high court of justice " which found him guilty of trea-
son against the state, and consigned him to the scaffold.



What was Seldeiis opinion of the final treatment to ^
which Charles was subjected has been sought, but without
success. If the question were simply, whether a nation
has a right to depose its sovereign, or even put him
to death — the answer might be reasonably in tlie
affirmative. "A king," said Selden, "is a thing men
have made for their own sakes ;— for quietness' sake."
They grant him certain high privileges and powers ; but
it is upon the condition that he shall guard their liberties
and administer the laws. The moment he neglects either,
be has broken the condition, and his privileges are for-
feited. Ipso facto he is reduced to the liabilities of a
subject. It matters little whether such a delinquent's
crimes appear in the form of murder, rape, or general
tyranny ; he has disregarded the purposes for which he
was raised to the throne, and no reason, either technical
or moral, can convince the understanding that he has not
degraded himself, or is not justly brought within the
power of the law which he despised. If it is asked, who
should be his judges ? it may be answered, without the
fear of a rational objection, that having forfeited his
prerogative, he might be arraigned before those to whose
integrity he had confided the dispensation of justice.

If it is asked, who should be the prosecutor ? it may
be answered, the power to whom the nation next confides
the sovereignty — for to that power it delegates the adminis-
tration of retributive as well as of preventive justice. The
dignity of the delinquent might claim a trial before a


higher tribunal, and the Commons of England might
vindicate the rights of the people, by impeaching him at
the bar of the House of Lords. It would be absurd to
admit as a good plea, that these tribunals have no juris-
diction over such an offender. From what has been
suggested, even as a technical objection, it appears inv^alid,
and in that case, if the most high tribunal of the realm
is assigned to administer to him justice, he can avail
himself of no further appeal ; and the most hardy
defender of absolute monarchy, will not dare to maintain
that a king, being once chosen, may violate the nation's
laws and the laws of God without the possibility of
redress. What sympathy of our nature, what dictate of
our reason, would it shock to see' a John, a Richard the
Third, or a Henry the Eighth, condemned by the laws
which he had infracted * ?

Admitting, under certain circumstances, the liability of
our kings to be arraigned for their crimes, the succeeding
query arises, Did Charles the First come within such
liability? The answer must be in the affirmative.
Charles certainly violated the laws and trampled upon the
liberties of the people. He levied taxes, imprisoned his
subjects, and tampered with the judges, in defiance of the

* There is no writer upon the Law of Nations that does not ac-
knowledge their right to depose their sovereigns who act in subversion
of their laws and liberties. — Locke on Government, ss. 213 — 243.
Vattel's Law of Nations, 1. i. c. 4. PuffendorPs Law of Nature and
Nations, by Barbeyrac, 1. vii. c. 8, s. 5, &c., and many others, as Sidney,
Le Clerc, and even liarclay, may be referred to.

z 2


parliament, and in contempt of every rule of justice. He
prevented the parliament assembling at its proper periods ;
by repeated dissolutions endeavoured to coerce it to his
will ; and made his own proclamations have the same
power as the acts of the legislature. Finally, he en-
deavoured, by force of arms, to subdue the opposition that
his illegal measures had roused into action, and for this
purpose he not only levied soldiers in his own dominions,
but made arrangements for the introduction of foreign
troops. Each of these acts was a breach of the constitu-
tion, and rendered him liable to and worthy of degrada-
tion from that office of which he neglected the duties and
perverted the powers.

Lastly arises the question. Was the power legal that
condemned him? and there can be as little reason for
hesitating in replying to this as to the former query.

The high court of justice had not a shadow of legal
power, nor the remotest right to try, much less to condemn
him. It is no mere technical objection to observe, in the
first place, that the parliament had renounced all right
to arraign Charles, for after all his offences had been
completed, and they had got him in their power, they
acknowledged him as their king ; they treated with him
as such at Newport ; and as they acknowledged him as
their sovereign, and were willing to retain him upon
the throne, they then renounced the right to try him, for
that right accrued to them only by the forfeiture of the
office which they still acknowledged he retained. With


additional absurdity he was arraigned as, " Charles
Stuart, King of England."

But the court had no right to try him. It not only
was not founded upon the will of the nation, but was
constituted in defiance of even the last exuviae of its
legislature. The House of Commons was so only in
name, its more appropriate title would have been the
delegation of the army, for by force the military had
expelled from the House all the members who would not
support their extreme faction, and the greatest number
that now assembled, and who voted for the appointment
of " the High Court of Justice," did not amount to

The House of Peers consisted of a still narrower remnant ;
for although, according to Rushworth, Whitelocke, and
Walker, it had a larger attendance upon the occasion of
the debate concerning the appointment of the above named
court, than for a long time previous, yet the number then
amounted but to sixteen, and of these, twelve voted against
it, and the others did not record their opinions *.

The court then was appointed in defiance even of the
wreck of the legislature, and as it was illegally constituted,
for that and other reasons, it acted consistently in defiance
of the laws throughout. The trial of Charles was a mere
farce, and it would not have been in any degree more a
murder, if the army-leaders had privately destroyed him,

* Parliamerit. Hist., xviii. 492.


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Online LibraryGeorge William JohnsonMemoirs of John Selden : and notices of the political contest during his time → online text (page 21 of 23)