23 minute read
A John Selden and Legal History ‘Liberty Above All Things”
JOHN SELDEN AND LEGAL HISTORY:
By Master John Baker
A view of the Temple in 1671, re-engraved for the Inner Temple in 1770 © Inner Temple Archive
John Selden (1584–1654), Bencher of The Inner Temple, was buried in the Temple Church in 1654. His tomb may still be seen below ground near the South Door. On the epitaph which he composed himself – destroyed by bombs in 1941 – he claimed to hail from a family with knightly origins, an allusion to his mother’s distant kinship with the first Sir John Baker, whose arms he assumed with a slight difference. He had always been self-conscious about his origins: his father was a yeoman farmer and part-time minstrel, and he was brought up in a thatched cottage. But his modest background had not held him back. He was revered, in the words of John Milton, as “the chief of learned men reputed in this land”. Another said that what Selden did not know, no-one knew. His fame is undiminished today, at any rate among scholars. His works are still in print, and nine books have been written about him in recent years.
The Selden Society adopted his name because of his contribution to English legal history. This was not in Selden’s day an academical study. The universities were run by and for the clergy and did not teach English law or English history. There was an informal society of antiquaries in London, but its very existence was disliked by James I, who feared – correctly – that such studies might have political implications. He denied it a charter, and it fizzled out around 1607. The ‘third university’ in the Inns of Court was the intellectual milieu for men with wider interests. Money was somehow found for Selden to go from Oxford to Clifford’s Inn and then to The Inner Temple, where he was called to the Bar in 1612. He kept chambers in the Inn, in Heyward’s Building (later Paper Buildings), for the rest of his life.
His name does not appear in the law reports. He made an income from written work in chambers, and as legal adviser to the Earl of Kent, but he showed no ambition for public advancement. When, in 1624, his turn came to lecture in Lyons Inn (one of The Inner Temple’s Inns of Chancery) – a routine step on the ladder of promotion – he obstinately refused and was thereupon disqualified for life from becoming a Bencher. Only ten years later, The Inner Temple elected him to the bench anyway; but by then it had become as much an honour for the Inn as for Selden.
For an explanation we must return to legal history. It is not known exactly how Selden became infected with his love of history, but that may be true of most historians: it is a congenital disease. There is no evidence that he played any part in the society of antiquaries, even though papers were read on the subjects which interested him. He received encouragement from Sir Robert Cotton, the antiquary, who met the young Selden at a Christmas dinner in Sussex while his father played in the minstrel’s gallery. Cotton’s house at Westminster contained a library packed with old books and manuscripts. There Selden was in his element. He delved deep into its treasures and was soon tempted into print.
While still a Bar student, at the age of 24, he published Jani Anglorum facies altera, the first history of the pre-1189 English legal system. The preface was tellingly dated from The Inner Temple on Christmas Day 1610. (Let us hope he found time for dinner in Hall, if not indeed for the Church.) The book is written in the over-elaborate, rambling style which became the hallmark of his writing – not helped by being in Latin. Typical of his many digressions, there is a long excursion on the suitability of women to exercise government. (Perhaps it is time for a study of Selden as a feminist.) But it showed that Selden already had a discerning approach to historical evidence. He rejected the old myths about a Graeco-British origin for English law, stories which (as he put it) were “patched up out of bards’ songs and poetic fictions taken upon trust”. He was sceptical about monkish chronicles. For instance, he pointed out that the Constitutions of Clarendon (1164) had been mangled and misreported by Matthew Paris, writing some 70 years later. He was nevertheless willing to accept the evidence of “a whole company of monks” (as he put it) if they corroborated each other. In particular, he accepted the series of chronicle accounts of the Norman Conquest which stated that William I had agreed, at a great meeting of his council, to confirm the old laws of Edward the Confessor. Despite the implication that William could have changed the law if he chose – and he did, obviously, add some new laws concerning land tenure – this showed that he did not overthrow the old English law. And Selden thought that when old laws were abrogated, it was always done by a parliament (whatever it was called). This belief in the essential continuity of English law was orthodox before 1600; indeed, a version of it had been taught in The Inner Temple as early as 1483. But Selden was now investing it with an authority derived from intensive scholarship: the long-received tradition in the legal profession was supported by trustworthy evidence and did not have to be discarded along with the myths about King Brut and the ancient Greeks. The law had evolved, but it was organically the same system.
In Titles of Honor (1614), also dated from The Inner Temple, Selden turned to biblical and Classical history for a supporting political philosophy. Monarchy, he argued, could not have preceded democracy. In a state of nature all men were equal, but people had found it inconvenient to be ruled by ‘giddyheaded multitudes’ and preferred to submit to a single ruler. However, since absolute or arbitrary monarchical power was as intolerable as unlimited liberty, kings came to govern by law. Selden must have been aware of the contemporary bearings of these opinions. James I’s concept of monarchy depended on kings having preceded parliaments, which were called merely to give advice, and on kings being legally capable of ruling without them. Although it was well established before 1603 that the monarch could not alter the law without parliament, now there was a king who did not at first seem to understand constitutional monarchy as it had been accepted in England. This was a central issue in the parliaments of 1610 and 1614.
English history was thought to be of assistance. The greater accessibility of public records enabled historical sources to be deployed in matters of state. Edward Coke of The Inner Temple was one of the first lawyers to make extensive use of the record office in the Tower of London, and of the rolls kept at Westminster, building up a collection of transcripts for forensic use. For instance, as early as 1587 he obtained from the Crown Office a collection of precedents of habeas corpus; these were the basis of his 1604 treatise on Magna Carta, c. 29. It has been customary for modern historians to praise Selden’s historical method and denigrate Coke’s. But the difference between them has been greatly exaggerated. Before Selden was born, Coke had been searching for proof that the common law predated the Conquest. He was guilty of anachronisms, but he recognised the importance of finding the earliest evidence, and the danger of relying on chronicles written long after the event. Selden’s approach was no different, though he had more time to spend on historical investigation and was generally more sceptical. Selden called his approach ‘synchronism’. Even so, he fell into anachronisms as well as Coke, for instance in relying on the supposed letter from Pope Eleutherius (d. 189 AD) to the mythical British King Lucius, which Sir Henry Spelman exposed as a monkish forgery. There are other examples of anachronism in Selden’s writings. But then, historians never get everything right.
These were not mere matters of curiosity. Legal history was a core vocational subject, of fundamental importance in the real world. As early as 1592, as Reader of The Inner Temple, Coke complained that it had become a matter of “great danger and still greater difficulty”. It seemed even more dangerous under the Stuart monarchy. Whereas today’s governments fret about tomorrow’s headlines, James I and Charles I were troubled by the past. Selden learned this personally when his History of Tithes (1618) was published. The right to tithes was a subject of much controversy following the dissolution of the monasteries, but it was clouded by layers of historical misunderstanding, and Selden decided to investigate it. His purpose, so he said, was merely to narrate the history and not to dispute the theology. But the underlying premise was that theology operated on a different plane from law and history. The origin of tithes was a matter of fact, not theory. Tithes had not, in fact, been paid in the early centuries of the Church, and parochial tithes could not have been, since there were no parishes. When the Church began, around 1200, to enforce the payment of parochial tithes, that was by positive ecclesiastical law, not divine or natural law: there was no reason in natural law why a person should be obliged to donate an aliquot portion of his income to another.
John Selden by Sir Anthony van Dyke © Inner Temple Collection
Selden claimed that his book set out the truth of these matters, to inform debate and allow the reader to form his own judgment. But it exploded like a bombshell. The king, who had not previously heard of Selden, summoned him to debate the issue; and the bishops summoned him for a dressing down. He was forced to acknowledge his error in publishing the book – not (as he insisted) error in its content, but in presuming to publish facts which might cast doubts on the Church’s rights. The book was thereupon suppressed. Worse still, Selden was threatened with imprisonment should he dare to publish any response to the refutations which were being speedily commissioned. He never again published anything quite as controversial. But he had discovered the power of history. And its special power – the reason why it so incensed divines and disturbed kings – was that it could only be countered by better history. In 1618, Selden had proved himself a consummate master of historical detail, from the time of Abraham to the present, and his notoriety would soon thrust him further into the public sphere. He was about to become the nation’s legal historian.
In 1621, Selden the historian was employed by the House of Lords to clarify the judicial role of the House in relation to impeachment, and by the House of Commons to collect precedents in support of freedom of speech. The outcome was that the king saw him as a troublemaker and had him arrested. He was soon released without charge, but it was a call to arms. A law-abiding barrister had been deprived of his liberty, and his papers confiscated, for no given reason. Selden could not ascertain the reason – seemingly, it was just for doing historical research. If the intention was to silence him, it was badly misjudged. In fact, it had the opposite effect. Selden proceeded to make ‘the liberty of the subject’ the most burning issue of the period. He entered Parliament after the next general election, and was immediately in demand to serve on committees, draft bills and search for precedents. (This is doubtless the explanation for his unwillingness to be Reader of Lyons Inn the same year.) He spoke on numerous constitutional matters, usually producing strings of precedents which no one else knew about – and on which he could not easily be challenged. Most of all, he was closely involved in preparing the impeachment of the Duke of Buckingham, the king’s leading minister and favourite. The intellectual difficulty for a historian who becomes involved in real-life affairs – in a world where history matters – is to distinguish between the historian’s impartial search for truth and the lawyer’s search for a viable and persuasive argument. The difficulty is especially acute for someone who knows much more than everyone else. It was around 1619 that Selden adopted the Greek motto, used on the Selden Society’s halftitles, which translates as ‘Liberty above all Things’. Whether this meant that liberty was above historical impartiality was a question on which Selden was about to be tested.
There was a brief hiatus in Selden’s parliamentary career when Charles I dissolved the 1626 parliament after four months, partly to save Buckingham and partly because it failed to grant him supply without unacceptable conditions. In exasperation he told the Privy Council that he abominated the very name of parliament. He decided to make do without it, and to raise funds by means of forced loans. Never mind that the lenders were unlikely to see their money again. Anyone who declined to pay would be locked up. The king asked the judges to confirm the legality of this procedure, but they refused. Crewe C.J. was dismissed, and about 70 loan-refusers were arrested. There was no intention of bringing them to trial, because the judges were unlikely to uphold the government. But in June 1627 five of them, known to history as the Five Knights, took the initiative themselves by applying to the King’s Bench for writs of habeas corpus. The Privy Council, duly alarmed, directed that the returns should state merely that the knights had been detained ‘by the king’s special command’. This was calculated to prevent any argument about the legality of forced loans, because it raised only two legal questions for the court. Was this a good return? And could the court grant bail?
Each applicant was separately represented, and Selden was assigned to represent Sir Edmund Hampden, an Inner Templar – not to be confused with his nephew John Hampden, also of The Inner Temple, who contested ship-money ten years later. No doubt it was hoped that Selden might introduce some helpful history. His main argument, almost inevitably, was based on Magna Carta, c. 29: “No free man shall be imprisoned except by the law of the land”. If this was duly executed, he said, “every man would enjoy his liberty more than now they do”. Admittedly, ‘the law of the land’ was a flexible phrase which might encompass arbitrary imprisonment by the king; but it had been explained in 14th-century statutes as requiring “due process of law”. That meant, in Selden’s submission, a formal accusation by presentment or indictment. Chapter 29 also contained the phrase “nec super eum mittemus” (nor shall we send upon him). These words, said Selden, might not signify much; indeed, “a man cannot find any fit sense for them”. But in the chronicle of Matthew Paris (printed in 1571) – which he said was “very authentic” since Paris was the king’s chronologer – could be found what Selden claimed to be the text of King John’s charter.
Above: Common and statute law Opposite, insert: John Selden wall monument
This read “nec in carcerem mittemus” (nor shall we send him to prison). This could be taken as clarifying the original intent, and the first person ‘we’ emphasised that the clause referred to imprisonment by the king. If the king could imprison free men at will, they would be in no better position than villeins, and then the ‘no free man’ provision would be self-contradictory. This was a flimsy argument, since one of the statutes of due process had explained that chapter 29 extended to villeins.
The Crown was represented with consummate skill by Robert Heath, Attorney General and a Bencher of The Inner Temple. It must be wrong, said Heath, to argue that no one could lawfully be imprisoned without presentment or indictment, because it happened every day when constables arrested suspects for felony or magistrates committed accused persons for trial. Heath accepted that Magna Carta was fundamental, but he challenged Selden’s submission about its wording. Even if Matthew Paris’s version was correct, it was evident that King John’s charter differed in several respects from the statutory version of 1225; it was “but an inception”. It mattered little anyway, because the words added nothing to “no free man shall be imprisoned”. He then asked the Clerk of the Crown to read out all the statutes of due process cited by Selden, one by one, and explained why they did not support his argument. Most significantly, they actually said “presentment or due process”, in the disjunctive. Moreover, there was direct authority against the Five Knights in the opinion signed by all the judges in 1592 that someone committed by the Queen’s special command was not bailable. This prerogative was necessary in matters of state, such as the gunpowder treason; and in such cases (so Heath argued) the King simply had to be trusted.
The court accepted Heath’s argument and remanded the prisoners without bail. The Lord Chief Justice hinted that the defendants’ counsel had tried to inveigle the court by misrepresenting some of the precedents. It was a resounding defeat for Selden, who was overwhelmingly outgunned by Heath. The ‘due process’ argument had not been thought through. Moreover, the Magna Carta of 1215 had never become law and was relevant only as a precursor to the 1225 statute. Had an original copy been available, they would have discovered that the words “in carcerem” were not there anyway. Selden had probably not yet seen a contemporary version of John’s charter. What is telling is that he pressed the authority of Matthew Paris, which he had castigated in print in Janus Anglorum.
The prisoners were released by the King’s command in January 1628, and there followed much debate as to whether the case had decided anything. No judgment had been enrolled, but only a note by the Clerk of the Crown that the prisoners were to be remanded. This could mean that bail had been decisively refused, or it could mean that the prisoners were remanded pending a decision. The ambiguity was normal; habeas corpus enrolments always ended in a ‘rule’ rather than a judgment on the validity of the return.
When a new parliament met in March 1628, with many of the imprisoned non-lenders as members, the issue was still alive. Having lost in court, Selden was determined to win the argument in the more receptive arena of the Commons. He produced a definitive text of the historical materials, which was entered in the Journals of the House, and set about refining his case. At the same time, he launched some parallel constitutional campaigns, particularly against pressing soldiers and the use of martial law in peacetime. He was named to at least 50 committees and gave 130 recorded speeches. In April, a major debate on the liberty of the subject was staged at a joint conference of Lords and Commons. Heath led for the Crown, while the opposition was represented by three Inner Templars, Coke, Sir Edward Littleton and Selden. The underlying issue was that the King had taken undue advantage of an arguably legitimate principle to enable him to force people to hand over money to which he was not entitled. That infringed the sacrosanct principle that taxation could only be imposed by consent of parliament. It also infringed the principle – the real gist of the ‘due process’ statutes – that no one should be imprisoned indefinitely without trial. If the King did not have to give reasons for imprisoning people, there were no legal means by which unlawful reasons could ever be challenged. It might even be done to silence political opposition. Both Coke and Selden had experienced that, and they knew the despair of losing one’s freedom with no reason given and no date set for release. A legislative solution was therefore sought, confirming Magna Carta and the statutes of due process. Heath, on the other hand, continued to urge the need for a prerogative power to imprison without showing cause, relying not only on the judicial opinion of 1592 but on a decision by Coke himself as Chief Justice in 1615.
Selden retorted that liberty of the person was the most fundamental right inherited by every freeman of the kingdom. If there was a right there had to be an effective remedy, for otherwise the right would be vain and meaningless. And remedy indeed there was: habeas corpus, “the highest remedy in law”. There were a dozen precedents, said Selden, where prisoners committed by the King’s special command had been bailed upon habeas corpus. There was also an express judgment in 1344 that a bare command by the King was not a sufficient cause of detention. Heath’s ‘mysteries of state’ could not prevail over law.
Selden now produced a more nuanced interpretation of the 1592 opinion. It said that those imprisoned by the Queen’s command could not be released by any court without a trial; they were entitled to be brought into the King’s Bench by habeas corpus, but if the return set out the cause of imprisonment they would not be released. The deliberate inconsistency left it open for Selden to argue that merely reciting the sovereign’s command did not amount to setting out a cause. Moreover, the wording presupposed that the prerogative power would only be used as a preliminary to jury trial. A more disingenuous submission was that the 1615 report of Coke’s judgment was the garbling of a young student. Coke, however, disarmingly confessed that it really was his opinion at that time; but he had changed his mind after members of parliament (including himself) had been imprisoned without known cause. This underlined the point that a principle accepted as sensible in one context had been grossly abused in another.
The outcome of all this was the Petition of Right, which was Coke’s idea rather than Selden’s. Selden hated compromise and would have continued to press for an ordinary Act, even though it was not achievable. But the Petition from both houses, having grudgingly received the royal assent, was effectively a statute.
It stands to this day as a guarantee that no one shall be compelled to pay any tax or loan without the consent of parliament, that no one shall be imprisoned without cause shown, and that no commissions of martial law shall be issued or executed contrary to the law of the land. It therefore achieved all of Selden’s goals. Although Coke deserves much of the credit, the victory was due in part to Selden’s tenacity and his industrious historical research. Selden was responsible for much of the wording, and his last-minute investigations into manuscripts helped to avert deadlock in the final stage. Not that everyone approved of his efforts. The Earl of Suffolk accused him of “taking a course to divide the King and his people”, and said he deserved to be hanged. Others have said that the mutual distrust between King and parliament fomented by Selden’s opposition hastened the Civil War and the King’s execution.
The Petition of Right was not the end of Selden’s parliamentary career. The Duke of Buckingham had still not been impeached, though that project fell through when Buckingham was assassinated during the recess. Selden then returned to the Petition of Right. The King and the law officers were already playing down its significance, and many instances were uncovered in which its terms had been violated. Selden was not going to take this quietly, and he continued to oppose the government so vigorously that on 4 March 1629 he was committed to the Tower. It was now Selden’s turn to make use of habeas corpus. The return stated that he had been committed for contempt against the King and his government and stirring up sedition. Littleton represented him and argued that these were not sufficient causes. “Contempt against the King” was too vague; sedition was not an independent offence known to the law and, even if it was, it was not a felony, and no one could be detained for a misdemeanour without bail. For the King to order such an imprisonment was contrary to the Petition of Right. The speech won much acclaim, and this time it was Heath who was discomfited. The judges advised the King that it would be wise to avoid a judgment by releasing the prisoners. The King (characteristically) rejected this advice and had the five members transferred from the King’s Bench prison back to the Tower, instructing the Lieutenant of the Tower not to bring them back again. The King’s Bench granted another habeas corpus anyway, returnable the next term. In the meantime, Selden and eight other members were prosecuted in the Star Chamber for contempts in parliament in opposing the adjournment – when the Speaker had been forcibly held in his chair. The defendants argued that only parliament had jurisdiction over what transpired in parliament. The judges (under considerable pressure) rejected the argument; but the majority agreed that it was not a matter for the Star Chamber. The following term, back in the King’s Bench, the court offered to bail the prisoners if they would give sureties for good behaviour. Selden objected that to do so would be in derogation of the Petition of Right. He offered to give sureties for good behaviour after he had been bailed, but not as a condition of bail. The court declined his counter-offer.
Later the same year Heath was rewarded for his pains with a grant of Carolana, a vast territory in North America between Virginia and the Gulf of Mexico. Selden was rewarded with another two years of imprisonment during the King’s pleasure. Nevertheless, his misfortunes made him something of a hero, and that is why The Inner Temple was proud to elect him a Bencher in 1633. He had achieved more than most politicians can ever hope to achieve in the real world, and it was not disagreeable to him to return to tranquil scholarship, which he pursued with vigour for another quarter of a century. But that is another story.
During this turbulent period, Selden had certainly been tempted to slant history to fit a legal argument. But he was speaking as an advocate rather than writing as a historian. The number of recent books about him show that his writings, however impenetrable to most of us, continue to fascinate today. His legal history may not have been successful in court. His views on Magna Carta and liberty may not have been original – they were shared by almost all the legal profession. But his achievement was to clothe them with meticulous scholarship and inspire the House of Commons at a critical moment in the nation’s constitutional history. Selden’s appeal to the past, bolstered by industrious archival research, gave them the proof they wanted of an ancient English constitution worth fighting for. And he was tireless in urging them on. In that way, he may be said to have lived up to his motto. Without liberty, we should not be remembering John Selden now. In that sense, perhaps, he was right that liberty had to come first.
Professor Sir John Baker KC LLD FBA
The Selden Society: John Selden and Legal History | Inner Temple
For the full video recording: innertemple.org.uk/libertyabove
