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

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One of the clergy who rendered himself liable to this
reproof was Dr. Sibthorpe. In a sermon, preached before
the judges of assizes at Northampton, he ventured to
maintain that " the king might make the laws, and do
what he pleased." He applied to the Archbishop of
Canterbury for a licence to print this sermon, but
Dr. Abbot was too firm a friend to the constitution of
his country to sanction, by such permission, a work that
advocated doctrines which supported its direct violation t.
Dr. Sibthorpe then applied to Laud, the Bishop of
London, whose chaplain, Dr. Worral, signed its impri-
matur. After reflection made him dissatisfied with this

* Seidell's Table Talk, s. Clergy.

t For this refusal, the Archbishop was suspended. (Rushworth, i.


acquiescence, and he subsequently sent the sermon to
Selden, requesting his opinion of the contents. Selden
discreetly avoided committing his sentiments to writing,
but in a private interview he told Dr. Worral " he had
given his sanction to a work full of erroneous principles,
which, if they were true, would abolish all ideas of meum
et tuiim, and leave no man in England possessed of
property. When the times shall change," he added,
" and the late transactions shall be scrutinized, you will
gain a halter, instead of promotion for this book." Poor
Worral, who was not the firmest of mortals, immediately
erased with great care his subscription to the licence ;
but it was afterwards signed by Laud himself, and pub-
lished under the title of " Apostolical obedience, c^c. *."

This combination of the church and crown against the
constitutional liberty of the people involved them in one
and the same ruin ; for when oppression goaded the latter
to an active determination for relief, they directed their
efforts, primarily, against those who had been the ad-
vocates of the misrule ; and it is one of the examples of
the Stuart characteristic abandonment of friends, that
before Charles fell, he consented to measures which
weakened the power and aided in the overthrow of the
hierarchy, that had been the most persevering of his
supporters in the struggle for unlimited power.

The inquisitorial loan, already alluded to, was the chief

* Ruslnvorth, 444.


source of revenue, and, consequently, was exacted with
rigour. The number of the gentry who refused to
contribute was very considerable; and in committing
them to prison for this refusal, for the court dared thus
to violate their chartered liberty, the superlative of annoy-
ance was brought upon them by selecting for them gaols
that were distant from their homes. The voice of the
nation was raised against this oppression, but opposition
was checked by additional aggressions. Sir Randolph
Crew was displaced from the chief justiceship for
objecting to the loan; soldiers were billeted upon the
people, and martial law predominated. Resistance was
thus checked, but it gathered strength during its sup-
pression, and when it eventually burst forth, these
aggravations gave a sterner spirit to those who struggled
for freedom.

It was not the amount of the loan so much as the
illegal mode of its being levied that was objected to ; and
Sir John Eliot spoke the language of his fellow prisoners,
and of all England, when, in his petition to the king,
he declared that his conscience would not allow him
to submit to an exaction that was unsanctioned by

Five of the imprisoned patriots were brought by writs
of habeas corpus into the Court of King's Bench, where
Noy, Bramston, Calthorpe, and Selden pleaded for their

* Whitelock's Memorials, 8.


Sir Edward Hampden was one of those five prisoners ;
and on the 212d of September, 1627, Selden thus argued
his case.

After taking some technical objections to discrepancies
between the writ for his client's committal, and that for
his detention, he proceeded —

" Now, my lords, I will speak a word or two to the
matter of the return, and that is touching an imprison-
ment by the king's special command, and by the lords of
the council, without any cause being expressed.

" Admitting either, or both of these to be the return, I
think that by the settled and constant laws of this king-
dom, without which we have nothing, no man can be
imprisoned by either of them, without a cause of commit-
ment expressed in the return.

" My lords, the statute of Magna Charta, caput 29 ; —
that statute, which, if it were in this respect observed as
it ought to be, every man would enjoy his liberty better
than he doth, that law expressly says — No freeman shall
be imprisoned without due course of the law. Out of the
very body of this Act of Parliament, besides the expla-
nation of other statutes, it appears — Nullus liber homo
capiatur vel imprisonetur, nisi per legem terrae.

" My lords, I know the words (per legem terrae) leave the
question where it was, if the interpretation of the statute
were not. But, I think, under your lordships' favour,
that in this statute they must have intended by due
course of law, either by presentment or indictment.

K 2


" My lords, if the meaning of these words (per legem

terrse) were but as we use to say, according to the law,

which leaves the matter very uncertain, and, by a special

command of the king, be within the meaning of those

words (according to law), then this act hath done nothing.

The act declares — No freeman shall be imprisoned but by

the law of the land ; now, if you will understand these

words 'per legem terrae' in the first sense, this statute

shall descend to villeins as well as freemen ; for in that

sense if I imprison another man's villein, the villein may

have an action of false imprisonment against me by the

law of the land. But in those days lords and the king,

for then they had villeins, might imprison them, and the

villeins had no remedy. Therefore, those words in the

statute (per legem terrae) were to help freemen who ought

not to be imprisoned but by due course of the law.

Unless the interpretation be thus, no man shall have any

privilege above the villein.

" Then I conceive, my lords, these words — per legem

terrae — must be here so interpreted, as they were in the

forty-second year of the reign of Edward the Third.

The bill is worthy the observing. It recites. That whereas

divers persons were, without any writ or presentment, cast

into prison, it might be enacted that it should not be so

done hereafter. The (king's) answer there is — That

because there is an article of the Great Charter, therefore

this shall be granted. So that it seems this statute is not

taken to be an explanation of, but the very words of

Magna Charta.


" I will conclude with an observation upon these words
of the statute of Magna Charta — 'Neither will we come
upon him ' — which words of themselves signify not
much now, as a man cannot find any fit sense for them.
But, my lords, in the seventeenth year of King John,
there was a great charter made, by which the statute in
the ninth of Henry the Third, whereby we are now
regulated, was framed, and there the words were —
Neither will we put him into prison ; that is, the king
himself will not : and to illustrate this, there is a story of
that time in Matthew Paris. In that book this charter
of King John is set down at large ; which book is very
authentic, and there it is entered — ' And in the ninth of
Henry the Third this statute was renewed in the same
words with that charter of King John ' — and, my lords,
he might know it better than any other, for he was the
king's chronologer in those times.

" Therefore, my lords, since there are so many reasons,
so many precedents, and so many statutes which declare
that no freeman whatsoever ought to be imprisoned but
according to the law of the land ; and that the liberty of
the subject is the highest inheritance that he hath, my
humble request is that according to the ancient laws and
privileges of this realm, this gentleman, my client, may
be bailed * "

* Harleian MSS. 252, PL 72, f. Opera Omnia, iii. 1933. The
first named authority is most accurate.

Selden maintained his actual opinion when he thus argued for Sir


Heath, the Attorney-General, argued against the dis-
charge of the prisoners. His arguments were neither
powerful nor convincing ; but this was of no importance,
for the predetermination of the judges was with him, and
the Chief Justice, Hyde, having declared the opinion of
the court against the release of the prisoners, they were
remanded to their places of confinement *.

The supplies that were thus illegally raised were as
unfortunately expended in a disastrous expedition against
the Isle of Rhee. Our foreign relations were most
unpromising of good ; the Palatinate was nearly subdued ;
our Protestant allies were generally defeated ; and
through the evil policy of Buckingham, we had now both
France and Spain to contend against as enemies. At
home affairs were in no degree more consolatory. We
have seen that some of the chief commoners of England
were imprisoned, and, as Sir Robert Cotton informed the
Privy Council when they desired his opinion, there was
"amongst the better sort of the multitude,'* deep dis-
trusts of the Government favouring the Papal religion ;

Edward Hampden's release, and later decisions have shown that his
opinion was correct. Subsequently in the House of Commons, he
observed, " I profess, though once I was counsel, and then spoke for
my fee for the gentlemen in their habeas corpus, yet now I speak
according to my knowledge and conscience. The question is, whether
any subject or freeman that is committed to prison, and the cause not
shewn in the warrant, ought to be bailed or delivered? I think, confi-
dently, it belongs to every subject that is not a villein, that he ought
to be bailed or delivered."

* Whitelock's Memorials, 8, Rushworth, i. 450.


complaints of ill-management ; jealousies of a standing
insubordinate army ; and a dislike of the Duke of Buck-
ingham. To remove these he advised the assembling of
parliament, and " a gracious yielding to their just
petitions *."

Sir Robert Cotton, justly placed as the most prominent
cause of the people's dissatisfaction, their jealousy of the
Papal religion being favoured by the court, for it undoubt-
edly was the one that most alienated from the king the
affections of his people. The existence of this jealousy
has already been noticed as existing in the last, and at the
opening of the present reign, and whether it was by
accident, or whether the truth peeped out, need not be
here inquired, it is certain that the conduct of the govern-
ment was such as sanctioned the suspicion that it
favoured this object of the people's detestation. Whoever
reads the historical authorities of the period must have
the conviction forced upon him that this was a very
operative cause in bringing about the subversion of the
government. The people were chiefly Protestants, too
lately escaped from the persecutions of Catholic Mary,
and from the struggle against the invading power of
Jesuitical Spain ; and too much grieved by seeing their
brethren suffering in France, not to make the intolerant
religion that occasioned those sufferings the object of
their greatest fear and hatred.

The queen and courtiers, many of whom, like her, were

* Cotton's Posthumous Works, by Howell. Rushworth, i. 467.


Papists, favoured every description of pageantry in the
exercises of devotion, as well as in their every day plea-
sures. They were not contented even with six days
of frivolity, but proclamations were issued almost com-
manding, and positively encouraging the pursuit of
jollity and amusements on the Sunday. Extravagance,
the mere forms of religion, and incessant dissipation, were
the characteristics of the court.

The people, in accordance with that characteristic of
our nature which inclines us to avoid the tastes and
practices of those we dislike, and to loath them in pro-
portion as we are urged to imitate them, became less
liberal, less social, and more inclined to sobriety and
simplicity, both in their public and private habits.

The mutual disgust that thus gradually grew up
between the court party and the majority of the people
was soon loudly expressed, and, as neither party was
willing to yield, the population of England speedily classed
itself in two great parties *.

When King James died, the nation was divided into
four parties f. The two great political parties were the
Royalists, who maintained a prerogative of the crown to
be, that its wearer's will is superior to the law, and the
Country, or Legal party, who supported the superiority

* A very full and interesting- detail of the discontent and insurrec-
tionary spirit that was now prevalent is given from private letters, &c.
by Mr. Disraeli, in his excellent " Curiosities of Literature." Second
Series, iii. 379.

I Coke's Detection of Court and State, 206.


of the laws, and the maintenance of the constitution.
The majority of the people then interfered but little
with politics, but were chiefly distinguished by the differ-
ence of their religous tenets. These were the Tiiritans
and the Papists, for all sects were merged in these two,
accordingly as they favoured the popular or courtly mode
in their religious observances. The latter party gradually
coalescing with the court, and advocating its measures ;
the Puritans by a simultaneous movement united with
the legal party, and the contest between them became the
more inveterate as it thus involved the most exciting of
all principles — those of politics and religion.

As far as assembling a parliament, Sir Robert Cotton's

advice was adopted by the king. Previously to its being
summoned, by an order of the Privy Council, those who
had refused to contribute to the loan were released from
confinement. In that order, their names, amounting to
seventy-six, are given * ; and we thence learn that they
embraced some of those who had been, and who continued
to be, the most distinguished of the opposition members,
for they were again returned by their former constituents
almost by acclamation. Their release was necessarily
looked upon as a tardy confession of error, rather than as
an exercise of clemency ; so difficult is it to escape from
the consequences of perpetrated evil. The sufferers came
into the political arena stimulated to aim at the over-
throw of the authors of those arbitrary measures by wliich

* Rushwortli, i. 473.


they had been oppressed, but the almost unanimous feeling
which the House of Commons evinced for a redress of
grievances was a genuine representation of the indignation
and wishes of the community. A contemporary historian,
by no means friendly to their proceedings, confesses that it
was no vulgar party casually predominating, when he
states that the members of the House of Commons
possessed wealth far exceeding that of the members of the
Upper House *, and we know that they were not its
inferiors in talent.

Selden, according to his own statement, was again
returned for the town of Lancaster t, which is probably
correct, rather than that of Dr. Wilkins, who notices
him as one of the representatives of Ludgershall.

The parliament assembled in March, 16^8, and the
Commons immediately proceeded to a consideration of the
grievances under which the country suffered. Numerous
committees were appointed for this purpose ; and Selden
appears to have been chairman, for he delivered the report
of one that was directed to consider all the proceedings
that had been adopted respecting the writs of habeas
corpus, moved for in the case of those who refused to
contribute to the loant. From this report, it appears
that Sir Robert Heath, the attorney-general, made the

* Sanderson's Life of Charles the First, 106.
f Selden's Vindicise, 30.

X Parliament. Hist. vii. 385. Epheraeris Parliamentaria. Sir J.
Napier's MSS.


draught of a judgment which he wished the clerk of the
court to enter as if it had been passed by the judges, but
he faithfully refused to do so without their order, which
they declined giving. The attorney-general continued,
though vainly, to importune him to make the entry, and
finally, about a week before the parliament assembled, he
fetched away the copy.

Conduct so illegal scarcely needs a comment. The
government evidently wished meanly to find a shelter
for its conduct behind a strongly expressed judgment,
apparently coming from the judges ; but it is certain that it
was an attempt to sap the liberty of the subject, tending
to weaken the bonds of society, by rendering the people
suspicious of the guardians of justice, which, being dis-
covered, must have more keenly edged the indignation of
those who were closing with the authors of such nefarious

When the cause of those who had been imprisoned
came to be fully debated, the defenders of the government
attempted to extenuate its conduct upon very untenable
grounds. They urged that those who refused to con-
tribute to the loan were not imprisoned, they were only
confined !

Selden passed by the technical distinction without a
difference contained in this argument, and met them upon
their own ground. " I will admit," said Selden, " confine-
ment is different from imprisonment; and it is against the
law that any should be confined, either to his house or


elsewhere. I know of nothing that is called a punishment,
but there is some ground of it, or mention thereof, either
in Acts of Parliament, Law Books, or Records ; but for
this of confinement I find none* "

In other debates relative to this subject, Selden took a
very prominent and efficient part. He incontrovertible
argued against committals, without the cause of imprison-
ment being expressed ; against levying money upon the
jDeople, without the consent of parliament ; and in favour
of a habeas corpus being granted when applied for in
every case of imprisonment.

On the 3d of April, four memorable resolutions, em-
bodying these opinions, were passed by the House of
Commons ; and a committee was appointed to hold a
conference with the Upper House, to request its con-
currence in an address to the king, declaring that such are
the legitimate liberties of the subject. This terminated
in the production of the celebrated Petition of Right.

Sir Edward Coke, Sir Dudley Digges, Mr. Littleton, and
Selden, were appointed by the Commons to be speakers at
this conference. The lord president, when he made a report
of it to the Peers, mentioned Selden as " a great anti-
quarian and pregnant man," whose task it vfas to produce
precedents, and state the laws relating to the various parts
of the petition f.

* Parliament. Hist. vii. 403. From some manuscript notes of Sir
John Goodriche, a member of this Parliament. Rushworth, i. 522.
t Journal of the House of Lords in temp.


The speech of Selden upon this occasion, so important
and so interesting to Englishmen, has been preserved, and
the following is a copy, amended by the comparing of
various authorities : —

" Your lordships have heard from the gentleman who
spoke last (Mr. Littleton), a great part of the grounds
upon which the House of Commons, after mature deli-
beration, proceeded to that clear resolution touching the
right of the liberty of their persons. The many Acts of
Parliament, which are the written laws of the land, and
are expressly to the point, have been read and opened ;
and such objections as have by some been made unto
them, and objections also made out of other Acts of
Parliament, have been cleared and answered.

"It may seem now, perhaps, my lords, that little
remains needful to be further added for the enforcement
and maintenance of so fundamental and established a
right and liberty belonging to every freeman of the
kingdom. But the House of Commons, taking into
consideration that in this question (being of so high a
nature that never any exceeded it in any court of justice)
all the several ways of just examination of the truth
should be used, have most carefully informed themselves
of all former judgments or precedents concerning this
great point, and have been no less careful to the due
preservation of his majesty's prerogative than of their own
rights. The precedents here are of two kinds, either

142 MElVrOTllS OF

merely matter of record, or else the formal resolutions of
the judges after solemn debate on the point.

" These precedents the House of Commons has com-
manded me to present to your lordships ; which I shall,
as briefly as I may, so I do it faithfully and perspicuously.
To that end, my lords, before I come to the particulars of
any of those precedents, I shall first remember to your
lordships that which seems a general key for the opening
and true apprehension of all those on record ; without
which key, no man, unless he be versed in the entries and
practice of the King's Bench, can possibly understand.

" My lords, in all cases where any right or liberty belongs
to the subject by any positive law^ written or unwritten,
if there was not also a remedy by law for the enjoying
or regaining of this right or liberty when it is violated or
taken from him, the positive law would be most vain and
to no purpose.

" Therefore I shall first observe the remedy that every
freeman is to use for the regaining of his liberty when he
is against law imprisoned. That remedy is by a writ of
de odio et atra, or de homine replegiando, or habeas
corpus, and corpus cum causa.

" The writ of habeas corpus, or corpus cum causa, is the
highest remedy in law for any man that is imprisoned by
the especial command of the king, or of the lords of the
privy council, without showing the cause of the commit-
ment. Neither is there in the law any such thing, nor


ever was tliere mention of any such thing in the laws of
this land, as a Petition of Right to be vised in such cases
for liberty of the person ; nor is there any legal course to
be taken for enlargement in such cases, however the
contrary has upon new ground or colour of law been

" Now, my lords, if any man be so imprisoned by any
such command, or otherwise, in any prison whatsoever
through England, and desire either by himself or any
other in his behalf, this writ of habeas corpus, in the
Court of King's Bench, the writ is to be granted to him,
and ought not to be denied him any more than an original
writ in the chancery, or other common process of law may
be denied.

" The writ is to be directed to the keeper of the prison
in whose custody the prisoner remains, commanding him
that at a certain day he bring in the body of the prisoner,
together with the cause of his being seized and detained ;
and oftentimes the cause of detention only is expressed,
that of caption being omitted. The keeper of the prison,
therefore, returns by what warrant he detains the prisoner,
and with his return filed to his writ, he brings the pri-
soner to the bar at the time appointed. When the return
is thus made, the court judges of its sufficiency or insuffi-
ciency only out of the body of it, without having respect
to any other circumstance. That is, they are to suppose
the return to be true; for if the gaoler makes it falsely,

144 ]\rEM01RS OF

the party may have his remedy by an action on the case
against liim.

" Now, my lords, when the prisoner comes thus to the
bar, if he desires to be bailed, and the court, upon view of
the return, thinks him in law to be bailable, then he is
always first taken from the keeper of the prison that
brings him, and committed to the charge of the marshal
of the King's Bench, and afterwards bailed ; for the court
is supposed never to bail any man that is not their own
prisoner, by being in the custody of the marshal of the
court. But if, upon the return of the habeas corpus, it
appears to the court, that the prisoner ought not to be
bailed, nor discharged from the prison whence he is
brought, then he is remanded, there to continue until by
due course of law he may be delivered, and is the highest
award or judgment that ever was or can be given upon a
habeas corpus.

"If the judges doubt only whether in law they ought
to take him from the prison whence he came, or give a
day to the sheriff to amend his return (as they often do),
then they remand him only during the time of their doubt,

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Online LibraryGeorge William JohnsonMemoirs of John Selden : and notices of the political contest during his time → online text (page 9 of 23)