Family and Education

b. 16 Dec. 1584, 1st s. of John Selden of Salvington, West Tarring, Suss. and Margaret, da. and h. of Thomas Baker of Rustington, Suss. educ. Chichester sch.;1 Hart Hall, Oxf. 1600;2 Clifford’s Inn 1602;3 I. Temple 1604, called 1612.4 unm.?5 suc. fa. by 1615.6 d. 30 Nov. 1654.7 sig. J[ohn] Selden.

Offices Held

Fee’d counsel, Virg. Co. 1620-c.1622;8 bencher, I. Temple 1633-d.9

Steward to Sir Henry Grey*, 8th earl of Kent c.1623-39;10 gov. Charterhouse hosp., London 1645-52;11 cttee. vis. of Oxf. Univ. 1647, commr. assessment, city and univ. of Oxf. 1647-8, drainage, Gt. Level 1649.12

Member, Westminster Assembly from 1643;13 kpr. of recs. in Tower of London 1643-at least 1650;14 cttee. sequestered bks. 1643, commr. Admlty. 1645, heraldry abuses 1646, scandalous offences 1646-8, cttee. indemnity 1647.15

Biography

According to Sir Simonds D’Ewes†, Selden was ‘a man of deep knowledge and almost incomparable learning’, but ‘exceedingly puffed up with the apprehension of his own abilities’. Born near the Sussex coast, a few miles east of Arundel, his background was humble. According to his baptismal entry, his father was the local minstrel, though the latter’s advantageous marriage to a local heiress brought him ties with the Kentish gentry and an estate worth around £23 a year. Selden’s schoolmaster at Chichester was sufficiently impressed by his abilities to arrange a place for him at Hart Hall, Oxford, where (Sir) Giles Mompesson* later recalled him as ‘a long scabby-pol’d boy, but a good student’. He left university without a degree, but thrived in his subsequent legal studies in London. Anthony à Wood records that he did ‘not only run through the whole body of the law, but became a prodigy in most parts of learning, especially in those which were not common, or little frequented or regarded by the generality of students’.16 Around this time he came to the notice of the antiquary Sir Robert Cotton*, possibly through his Sussex connections, and is said to have worked for him as a copyist. This development transformed Selden’s career. Cotton not only gave him access to his famous library, but drew him into an intellectual network which included William Camden, James Ussher, Lancelot Andrewes, and such Continental luminaries as Hugo Grotius, Daniel Heinsius and the Arminian Gerard Vossius. Selden subsequently corresponded with many of these figures, achieving both international recognition and a firm grasp of current European approaches to research and writing.17

Selden began to publish his ideas in 1610, and in just eight years established himself as a force to be reckoned with. Most of his early works were studies of English law and constitutional history, either overviews of developments from the earliest times to the Norman period, like Jani Anglorum Facies Altera, or more specialized studies of particular legal issues, such as The Duello or Single Combat, both of which appeared in 1610. His first major triumph came in 1614, when his Titles of Honour displayed his mastery of peerage law, genealogy and heraldry, while three years later a progressive work of biblical criticism, De Dis Syris, brought him a new audience across Europe. His History of Tithes, published in 1618 and arguably his greatest achievement, demonstrated a command of sources and analytical techniques that scarcely any of his English contemporaries could match.18 Inspired by the philological methods of Continental humanism and the pioneering researches of Camden, Selden from the outset proclaimed that he was offering his readers a new and superior account of English history, in which old legends and popular assumptions would be replaced by objective facts, derived from careful and critical study of original sources, especially the records of central government. His books set new standards in England for textual analysis: documents and dates were exhaustively checked, and errors were fearlessly exposed. In Titles of Honour, for example, he demonstrated that the famous Modus Tenendi Parliamentum originated in the fourteenth century, and was not an accurate guide to Anglo-Saxon assemblies as Sir Edward Coke* believed. Given his vast armoury of skills, from palaeography to numismatics, his deep knowledge of governmental institutions down the centuries, and his insistence that he offered a neutral, unbiased commentary on his materials, it was hardly surprising that his subsequent pronouncements in Parliament on matters of law and precedent were treated with great respect.19

Selden’s historical studies and legal training made him a firm advocate of the theory of the ‘ancient constitution’, although he was not prepared to endorse the tradition that the Common Law had existed substantially unchanged since time immemorial. Indeed, he used the commentary in his 1616 edition of Fortescue’s De Laudibus Legum Angliae to challenge that particular premise of this classic treatise. Insofar as he accepted the concept of institutional continuity, he preferred to date it from Saxon times, and indeed in his early works he fluctuated in his opinion of the disruption wrought by the Conquest on English law and government. Nevertheless, he believed that, while present laws, customs and institutions were not literally identical to those of the distant past, the constitution still preserved the essence of its earliest forms. This long-term success demonstrated that the system was perfectly matched to the country’s needs, and justified its continuance.20 Central to the theory of the ancient constitution was the principle of balance between the Crown’s prerogative and the liberties of the subject. The extent to which Selden subscribed to any precise model of ‘mixed monarchy’ is a matter of dispute, but he certainly recognized the need to guard against innovations which might undermine the existing balance of privileges and safeguards. In the early seventeenth century, such innovations seemed most likely to emanate from the Crown. The ‘divine right of kings’ was clearly a threat to the ancient constitution because it set the Crown outside the normal confines of the law. This was unacceptable to Selden, and indeed some scholars have interpreted both Jani Anglorum Facies Altera and the Fortescue edition as coded attacks on James I’s constitutional utterances. Nevertheless it was a dispute over ecclesiastical matters that brought him into direct conflict with the king.21

Selden’s History of Tithes was a contribution to a long-running and increasingly heated debate over the respective claims of the Church and laity to tithes. Selden claimed that his book adopted a neutral position, but in fact it severely undermined the popular view that tithes were collected on the strength of divine ordinance, and demonstrated instead that down the ages the process had been governed primarily by the secular, customary laws of the countries concerned. This conclusion outraged most of the English clergy, and consequently the king summoned Selden in December 1618 to explain himself. James was sufficiently impressed by what he heard to commission Selden to write several short tracts on religious themes, as well as a full length treatise on the Crown’s claim to sovereignty of the seas, Mare Clausum. Nevertheless, he wanted to put an end to the controversy over tithes. At first Selden refused to back down, but in January 1619 he was forced to apologize to High Commission, and the History was then suppressed. Worse was to follow. With clerical polemicists now queuing up with their ripostes, Selden was forbidden to reply to them. In the meantime, he had completed Mare Clausum, but in mid-1619, with the book on the point of publication, James demanded changes. This time Selden obliged, but, for reasons which are unclear, the new lord admiral, Buckingham, proceeded to withdraw his support, whereupon the project had to be abandoned.22

Advancement through Court patronage now seemed unlikely, but Selden’s talents were still much in demand elsewhere. In July 1620 he was recruited by Sir Edwin Sandys* to help codify the legal and governmental framework of the colony in Virginia.23 In the following March, Selden was employed by the House of Lords to help survey its privileges. This project soon became the subject of controversy, as the Commons’ attempts to punish patentees exposed the considerable confusion which existed about the procedures and scope of parliamentary judicature. Accordingly Selden devoted the bulk of his report to this one subject. For the most part he merely reproduced the relevant precedents, though in one case he may have distorted the original record to encourage the Lords during the impeachment process against lord chancellor St. Alban (Sir Francis Bacon*). Either way, Selden’s treatise, The Privileges of the Baronage of England, helped to revive parliamentary judicature, and this meant that once again he was brought to the Crown’s notice.24 His association, through the Virginia Company, with two other perceived troublemakers, the earl of Southampton and Sandys, probably aroused suspicions still further, and on 16 June all three men were arrested. Selden was asked whether he wished the Commons to have power of judicature, an issue which had arisen in respect of the Edward Floyd case, but what answer he gave is unknown. On 20 July, following the intervention of Lancelot Andrewes and the new lord keeper, John Williams, another associate of Cotton’s circle, he was released. This was not quite the end of the matter, as his papers had been confiscated, and when it emerged that these included the materials for the report to the Lords, the peers furiously demanded their return. After some dragging of ministerial feet, the bulk of the missing notes were handed over, and Selden was then employed to fill the remaining gaps, the work finally being completed around mid-December, just days before the Parliament closed.25

In the short term Selden continued his involvement with the Virginia Company, but he soon acquired a more sedate and regular form of employment. One of Sir Robert Cotton’s patrons was Thomas Howard, 21st earl of Arundel, whose brother-in-law, Henry Grey, owned the London townhouse of Whitefriars, close by the Inner Temple. Having made Grey’s acquaintance, Selden subsequently became the steward of his household, probably in around 1623, when Grey succeeded to the earldom of Kent. Thereafter, although he continued to treat the Inner Temple as his main base in the capital, Selden took to spending the summer months at the earl’s Bedfordshire seat, Wrest.26

Why Selden decided to stand for Parliament in 1624 is not known. He initially tried for a place at Nottingham, where Grey’s father-in-law had an interest, but the corporation rejected his application. Instead, he secured a place at Lancaster on 2 March. As the duchy of Lancaster controlled the borough, his nomination was presumably mediated by one of his aristocratic friends.27 He had taken his seat by 11 Mar., when he was appointed to attend the conference with the Lords about England’s readiness for war. Thereafter he remained relatively prominent, despite his novice status, making 18 speeches and receiving another 39 nominations to conferences or committees. He was particularly in demand as a draftsman, receiving his first such appointment on 13 Mar., when he was ordered to help prepare a bill of praemunire against the Catholic would-be Member, Sir Thomas Gerrard. On the same day his legal expertise was recognized by his nomination to the committee for the bill for continuance of expiring statutes. He evidently made himself useful, as he was one of the lawyers instructed on 25 Mar. to continue working on the bill during the forthcoming recess.28

Selden’s reputation as an authority on parliamentary records went before him, and on 17 Mar. he was named to help check the accuracy of the text of the bill for repealing a Tudor statute on Welsh ordinances. His report on this issue the following day constituted his maiden speech. The measure proved surprisingly controversial, and on 14 Apr. he was named to a joint conference with the Lords about it.29 Selden was appointed to attend the conference on the monopolies bill, and to examine the patents which the measure cited (7 and 22 April). When further amendments were required, he was named on 13 May to the special joint drafting committee with the Lords. He was also appointed on 3 Apr. to examine the records of the Merchant Adventurers. His nomination to the committee to view petitions about the courts of justice and prepare a strategy for reform presumably prompted a further conference appointment about pleadings in the Exchequer court (19 and 30 April).30 Of the six private estate bills with which he was associated, he certainly attended the legislative committee concerned with manorial customs at Beaminster, Dorset on 15 April.31 His interventions during debates on heralds’ abuses and the bill to abolish trial by battle (22 Mar. and 8 May) will have reminded Members that he was an authority on both heraldry and duelling, and he was never slow to show off his specialist knowledge. On 5 Apr., after Sir Edward Coke produced a precedent relevant to the dispute between the Grocers’ and Apothecaries’ companies, Selden elaborated on Coke’s remarks to demonstrate that Parliament was certainly entitled to intervene.32

Indeed, upholding the dignity and authority of the Commons was one of Selden’s main preoccupations in 1624. Added to the committee for privileges on 24 Mar., he was soon at work on the case of Matthias Fowles, a patentee who had dared to criticize Parliament in print. On 3 Apr. he was named to the committee to find precedents for dealing with such instances of contempt. Ten days later he cited an Elizabethan case in which the Commons had punished a similar offender, and although the parallels were not especially close his argument helped persuade the House to appoint a further committee, to which he was himself named, to pursue the matter further.33 The precedents which he produced on 8 Apr. helped to clear the way for Carew Ralegh’s† restitution bill, after the king had questioned whether such measures could be initiated by the Commons. Selden went on to chair the bill’s committee, whose findings he reported on 27 April.34 He also chaired the sub-committee of the privileges committee which was instructed to find precedents after three Buckinghamshire boroughs petitioned to be re-enfranchised, and he spoke in favour of their request when it was debated in the House on 4 May.35

Selden was not in favour of war with Spain, perhaps out of dislike of Buckingham, or because his European scholarly contacts rendered him more sympathetic to the king’s objections. On 19 Mar. he opposed a speedy decision on supply, making one of the most pointed interventions of the day: ‘Mr. Selden will not speak to the great matter in hand, nor to the orders of the House, being so young a Parliament man, but yet he hath been no stranger to the journals of either House, and found that the pettiest business hath not been so precipitated’. With the Commons unwilling to grant supply on the scale requested by the king, and keen to maintain some control over how the money would be spent, he was appointed with Cotton on 20 Mar. to search for precedents on the appointment by Parliament of treasurers of war. Two days later both men were instructed to assist the committee appointed to draft a reply to the king’s financial demands.36 Doubtless on the strength of this work he was also named to the committee for drafting the preamble to the subsidy bill (10 April). On 24 Apr. and 11 May he offered precedents for the regulation of the proposed treasurers of war, and on the latter occasion argued that they be made accountable to the Commons alone. On 1 Apr., when the Lords sent down an unpopular proposal for an emergency loan to fund the Navy, Selden was named to a select committee to find appropriate precedents. His only other related committee appointment concerned the preparation of a bill for finding horses and armour (16 April).37

As the drive to war gathered momentum, Selden found himself out of step with the mood of the House. On 1 Apr. the Commons rallied behind Buckingham’s proposal for a joint committee to draft a public justification of the imminent breach with Spain, consisting of the secretaries of state, two other Members of the Lower House and two peers. Selden opposed the inclusion of Secretary Sir Edward Conway on the grounds that he was not in the Commons to hear himself named, and was promptly slapped down. He also objected to the politically motivated allegations against lord keeper Williams, doubtless recalling how the bishop had helped him in 1621. However, when on 21 Apr. he began to delve into the minutiae of the dispute between Williams and Lady Darcy, he was accused of a partisan straining of the facts and interrupted.38 Given his brief imprisonment in 1621, it is hardly surprising that Selden avoided active involvement in the attack on lord treasurer Middlesex (Sir Lionel Cranfield*), despite his detailed grasp of parliamentary judicature. Indeed, on 15 Apr. he warned against using the word ‘impositions’ in complaints against Middlesex because it risked reviving old arguments with the Crown about their legality. Although Sir Robert Phelips eventually proposed his inclusion in a committee to search for precedents about impeachment (14 May), Selden is not known to have contributed to debates on the subject. He was drawn into the attack on Middlesex only once more, on 21 May, when his advice was sought on the terms of the bill to make the Earl’s lands liable for payment of his debts.39 Instead, from 28 Apr. until the end of the session he threw himself into examining the allegations against Dr. Anian, president of Corpus Christi College, Oxford, chairing the committee of inquiry and preparing a petition to the king requesting Anian’s removal from office. When the petition was finally presented, however, James ruled that it dealt with a question of ecclesiastical discipline which should have been referred straight to him, and declined to meet the Members’ demands.40

In October 1624 Selden fell foul of the Inner Temple authorities by refusing to give readings at Lyon’s Inn, for which he was fined, temporarily put out of commons, and barred from becoming a bencher.41 He is not known to have sought membership of the 1625 Parliament, but in 1626 he was returned both at Great Bedwyn, where he opted to sit, and at Ilchester, where the local patron, Sir Robert Phelips*, was most likely approached by the 3rd earl of Pembroke, brother-in-law to both of Selden’s main aristocratic contacts, the earls of Kent and Arundel. By contrast, Great Bedwyn’s seats were in the gift of the 2nd earl of Hertford, with whom Selden had no known direct connection. However, Hertford was certainly an ally of Pembroke and Arundel in the forthcoming attack on Buckingham, and these dissident peers needed supporters in the Commons, especially as Charles I had already blocked the election of several potential troublemakers, such as Phelips, Sir Edward Coke and Hertford’s brother, Sir Francis Seymour*, by pricking them as sheriffs. Arundel at least is likely to have known of Selden’s attitude towards Buckingham, while his detailed knowledge of impeachment procedure must have commended him as an alternative spokesman in the Lower House. While Selden’s greater prominence in the 1626 Parliament was doubtless in part a product of growing experience and self-confidence, the issues on which he focused, and the arguments that he advanced, may to some extent have been influenced by the priorities of his patrons in the Lords.42

Selden formally opted to sit for Great Bedwyn on 18 Feb., by which time he had already been named to four legislative committees, mostly concerned with private estates, and added to the committee for privileges.43 Thereafter, he maintained a moderate profile on the legislative side, being named to a further ten bill committees, a marginal increase on his total in 1624. He was also appointed to help draft bills on labourers’ wages and process in the prerogative courts (2 Mar. and 24 May), as well as a petition about economic grievances and the preamble to the subsidy bill (25 May).44 Furthermore, during this Parliament he emerged as a key figure in the Commons’ political battles, at first building on the issues of privilege with which he was already identified, but rapidly bringing his legal skills to bear on matters of an altogether more controversial nature.

From the outset Selden displayed a new willingness to bend the evidence of precedent and tradition to suit his own ends, endangering his reputation for impartiality. His first recorded speech in 1626 concerned the pricking of Sir Edward Coke as sheriff, a blatant attack by the Crown on free elections and the Commons’ right to determine its own membership. Coke, now sheriff of Buckinghamshire, had challenged this stratagem by having himself returned as one of Norfolk’s knights of the shire, but Members were nervous about allowing him to take up his seat. On 14 Feb. Selden sought to break the deadlock. Completely ignoring the weight of precedents in the king’s favour, he argued that as the key ordinance dictating that sheriffs must be resident in their shrievalty had been approved only by the House of Lords, it was questionable whether it was binding on the Commons. Moreover, placing his own interpretation on the wording of the election writs, he reasoned that ‘because it concerns Sir E. Coke and the whole county, therefore fit Sir E. Coke should be called to justify his own election’. His logic was simple; if Coke could leave his county to testify in the House, then he would also be at liberty to sit. This argument was too radical for most Members, however, and instead Selden found himself named to a sub-committee of the privileges committee to review the precedents. He reported back on 21 Feb., somewhat inconclusively, and two days later had to admit that his committee had not considered precedents in the Commons’ own records. Referred back to the House, the issue fell by the wayside until 9 June, when it emerged that Coke had been served with a subpoena, and Selden successfully argued that he should be granted parliamentary privilege even though his status as a Member was still unresolved.45 Selden’s efforts on this front may not have been made entirely on his own initiative. His electoral patron, Hertford, chaired the Lords’ committee for privileges, which was simultaneously fighting to prevent the king from barring the bishop of Lincoln and the earl of Bristol (Sir John Digby*) from the Upper House. Moreover, Hertford’s own brother had also been pricked as a sheriff to prevent him from attending the Commons.46

Selden’s next major campaign, a bid to punish High Commission for excommunicating Sir Robert Howard*, may also in part have been politically motivated; at the very least it was calculated to offend Buckingham, whose brother, Viscount Purbeck, had been cuckolded by Howard.47 However, as with the Coke affair, the battle touched on the independence of Parliament and the right of the Commons to determine its own membership. The narrow point at issue was whether High Commission was in breach of parliamentary privilege, because Howard had technically been a Member of the 1624 Parliament when prosecuted for his adultery in March 1625. On 17 Feb., though, Selden dramatically warned that High Commission’s behaviour threatened the entire House. Howard had been returned to the 1626 Parliament, but as he was subject to the greater excommunication, any Members who mixed with him would themselves be liable to lesser excommunication. Brushing aside Sir Dudley Digges’s statement that Howard had already been absolved from his sentence, Selden called for all lay members of the High Commission, in other words those who lay within the Commons’ jurisdiction, to be punished for this contempt. He also produced a precedent from 1621 to demonstrate that Parliament was entitled to act over a breach of privilege committed in a previous session. Named to a select committee to investigate the case, he reported back the following day to obtain permission for Howard to take his seat without first receiving communion, normally one of the key conditions of membership.48 Although the evidence that he finally presented (21 Mar.) was somewhat inconclusive, the Commons agreed to award privilege, notwithstanding the insistence of Sir John Suckling, a High Commission member, that Howard had failed to demonstrate his parliamentary status at his prosecution. Selden again pushed for punishment of the Commission’s lay members and, having won agreement that they should be summoned before the Commons, helped to prepare a set of questions which he presented for consideration on 29 April. The way was now clear for the examination of witnesses on 3 May, which served to convince the House that Howard’s privilege had been both declared and ignored by the High Commission. However, the problem remained of how to get the excommunication quashed. Selden argued that, rather than simply requesting the archbishop of Canterbury to deal with the matter, the Commons should instruct lay members of the Commission to overturn the sentence in a special session, and his more assertive views carried the day. In the event the commissioners were allowed some latitude, and the proceedings against Howard were finally declared void in June without the need for further pressure from the Commons. Nevertheless, the outcome was a triumph of sorts for Selden. Despite a relatively shaky case, he had both secured Howard’s absolution, and confirmed that privilege could be claimed for 16 days before a scheduled sitting regardless of whether Parliament actually assembled on that date. This was an important precedent for the future. No doubt he also derived considerable satisfaction from forcing the High Commission to overturn a judgment, given his own experience in 1619.49

As well as the Howard case, Selden addressed several other aspects of relations between the Church and the laity. On 25 Feb. he spoke in favour of the clergy being judged by laymen, providing they were of a certain social rank. Conversely, he argued on 10 Mar. against clergy serving as magistrates, drawing on medieval precedents to demonstrate that it was inappropriate for them to handle criminal cases. His name subsequently headed the committee list for the bill concerned. On 18 Apr. he asserted that the bill about citations would not deprive church courts of an existing jurisdiction, but merely restore them to their ancient practices. At this stage he was far more preoccupied with the Church’s legal jurisdiction than with matters of doctrine, and showed barely any interest in the issue of Arminianism. Not until 3 June did he became involved in the attack on Richard Montagu, being added then to the committee to prepare charges for transmission to the Lords. This is surprising, as Montagu had been one of the more prominent critics of the History of Tithes, but Selden shared his dislike of strident Calvinism, and numbered among his scholarly correspondents at least one Dutch Arminian, Gerard Vossius.50

In marked contrast, Selden wasted little time in launching into the campaign against the duke of Buckingham. On 23 Feb. he threw his weight behind Sir John Eliot’s allegations about the second arrest of the St. Peter of Le Havre, arguing that the Commons should seek to establish the legality of Buckingham’s behaviour, and he was added to the investigating committee. By 11 Mar. it was clear that the inquiry was failing to bear fruit, but he still argued that Buckingham’s behaviour might qualify as a grievance, a view not widely shared.51 Meanwhile, on 28 Feb. he drew on his experience of drafting the 1624 subsidy bill preamble to claim that the Commons might be entitled to examine the councillors of war about the advice they had given the king. This was a somewhat debatable interpretation of the Act, but he convinced the House that the councillors should be summoned, and was promptly named to help prepare appropriate questions for them. This line of attack also ran into trouble after the attorney-general, Sir Robert Heath*, advised the councillors that they did not have to reveal their advice, and on 8 Mar. Selden was obliged to defend his earlier remarks. Although the councillors were subsequently examined individually, their continued stonewalling proved an insuperable obstacle.52

By this time Selden was acting as counsel in the Lords’ hearings into the proper descent of the earldom of Oxford. Together with his work on the Howard privilege committee, this perhaps explains why he was slow to pick up on Dr. Samuel Turner’s suggestion that the attack on Buckingham should proceed on the basis of common fame. However, when Eliot moved for a committee on 21 Mar. to search for precedents relevant to Turner’s case, Selden was the first person nominated. On the following day, with the Commons under severe pressure from the king to abandon Turner’s strategy, Selden helped keep the campaign alive by arguing that the key issue was not whether the allegations were correct, but whether it was correct for Members to proceed on the basis of common fame.53 On 25 Mar., having joined the committee for the causes of causes, the key body gathering evidence against the duke, he presented details of lavish Crown grants to Buckingham, the potential basis for a grievance. His activities for the next few weeks are obscure, but on 21 Apr. he made it clear that his enthusiasm for the campaign was undimmed. With a committee of the whole House debating the charge that the duke had handed over ships to France, some of Buckingham’s supporters began to dispute the facts of the case. Selden promptly intervened, asserting that Members should ‘censure the cause as it now stands before us, if the informations be true, and then give the duke notice to answer’, thus paving the way for a vote that Buckingham was culpable. On the same day he was appointed to the committee to pull together all the evidence assembled against the royal favourite, and to check for precedents. On 22 Apr. the committee for the causes of causes was finally ready to report, but the Commons remained nervous about proceeding on the basis of common fame. Selden produced precedents to demonstrate that the approach had been successfully employed in Henry VI’s reign, but crucially he also argued the case for political expediency:

the question is whether a formal accusation in a parliamentary proceeding by common fame may likewise be exhibited to the Lords on common fame. By reason of conveniency it may, or else great men’s faults would never come to light. The faults of the gods could not be known until fame was born....

As Sir Thomas Wentworth also adopted the same line, the House was won round, and the way was clear for the strategy to be perfected.54

On 3 May Selden was appointed to help present the charges in the Lords, selecting as one of his assistants another Hertford client, Edward Kirton. However, residual opposition within the Commons continued. When Members the next day debated the claim that Buckingham had encouraged the growth of popery, Sir Humphrey May attempted to deflect criticism by alleging that one of the key witnesses was himself doctrinally suspect, and Selden had to silence May by complaining that it was contrary to procedure to cast such aspersions. Shortly before the final charges were ready for consideration by the Commons, it emerged that they would be delivered to the Lords not only verbally, but also in writing, in the form of a bill. This apparent innovation was challenged on 6 May, but Selden once more intervened, citing a string of medieval precedents to justify this approach. On the same day he was entrusted with the charges relating to the St. Peter affair and Buckingham’s alleged failure to guard the English Channel.55 Shortly before presentation of the impeachment charges began on 8 May, Kirton proposed that Buckingham be sequestered, whereupon Selden, querying the term, went further and argued that by precedent a man thus accused of treason should be imprisoned. After fulfilling his brief in the Lords, he returned to this point the following day, maintaining that several of the charges, such as conspiring to convert the then Prince Charles to Catholicism, amounted to treason. He also asserted that now the accusations against Buckingham had been lodged with a court of record, namely the House of Lords, they had assumed a status more substantial than that of common fame. Eventually those in favour of arrest triumphed, and a message was sent, but the Commons was ultimately powerless as the king was determined to protect his favourite. Charles’s arrest of Digges and Eliot forced the House back onto the defensive, and prompted a vote on 16 May that Selden and the other speakers at the impeachment hearings had not exceeded their brief.56

On 22 May, in the wake of the arrest of the two Members, Selden threw his support behind the draft remonstrance defending the Commons’ privileges. However, its text was deemed not to go far enough, and he subsequently helped to convert the Remonstrance into a much more wide-ranging assault, directed not just against Buckingham but also at grievances such as unparliamentary collection of Tunnage and Poundage. Selden informed Members on 12 June that the Remonstrance was now finished. The hostility with which it was greeted by some seemed to take him by surprise, and he was reduced to protesting that the issues raised had all previously been approved for inclusion by the House. This time it was Digges who smartly intervened to secure a vote, and the document was approved without amendment. In the event, the king’s recent letter demanding supply prompted the drafting of a supplementary clause, which Selden reported on 13 June. On the following day he was named to the committee which prepared the speech to be delivered by the Speaker when the Remonstrance was presented to Charles.57

On 17 June, two days after the king dissolved Parliament, Selden and the other Members who had presented the impeachment charges to the Lords were forbidden to leave London. Charles was planning a mock trial of Buckingham in Star Chamber as a means of disposing of their allegations, and attorney-general Heath demanded that they hand over their evidence against the duke. When the group asserted that they were not at liberty to reveal such material without parliamentary authority, Heath tried approaching each of them individually. However, Selden’s written reply of 21 June still maintained that he had no knowledge of any evidence that had not already been presented to the Lords, and the government abandoned its inquiries.58

Selden is generally regarded as the author of an anonymous treatise, ‘Of the Judicature in Parliaments’, which assumed its final form in the immediate aftermath of Buckingham’s impeachment. If this was indeed his work, then it effectively drew a line under his thinking on the subject, as in the following year he began to grapple with the threat posed by arbitrary government. In the spring of 1627 he was shown an advance copy of Robert Sibthorpe’s soon-to-be-published sermon justifying the Forced Loan, and was horrified by the implications which its arguments held for private property.59 However, in the short term he was more concerned about the dangers of arbitrary imprisonment, and in November he acted as counsel to Sir Edmund Hampden, one of the defendants in the Five Knights’ Case. Reminding the court that under the provisions of Magna Carta, ‘no freeman shall be imprisoned without due process of the law’, Selden asserted that this meant specific judicial processes which were still enshrined in the Common Law. It followed that ‘by the constant and settled laws of this kingdom (without which we have nothing) no man can be justly imprisoned, either by the king or Council, without a cause of the commitment; and that ought to be expressed in the return’. It was a striking argument, but it rested on precisely how the key passage in Magna Carta was interpreted, and attorney-general Heath was able to offer an alternative reading that still allowed the king to divert from the usual courses when the occasion demanded. Invited to rule on whether the royal prerogative was subject or superior to the Common Law, the judges opted for the status quo, neither granting bail nor confirming the claims of the Crown. Clearly the matter would not rest there, and the great lawyer set to work to fashion a more conclusive case for the defence.60

At the general election of 1628, Selden found a seat at Ludgershall, most likely on the nomination of the earl of Hertford, who apparently shared his hostility to arbitrary imprisonment. He is said to have attended a meeting at Sir Robert Cotton’s house before Parliament opened, where a group of leading Members agreed to give priority to safeguarding the liberties of the subject.61 Selden was now undoubtedly one of the leading personalities in the Commons, with a formidable reputation. On 31 Mar. Sir Robert Phelips referred to him as one ‘who never mistakes or so seldom as no man can do less’. Occasionally he played up to his scholarly image, as on 31 May during the debate on the relative antiquity of Oxford and Cambridge universities, when he cited obscure foreign sources to support Oxford’s claim to precedence, and pointed out a forged date in Camden’s Britannia. However, with nearly 50 committee appointments and around 130 recorded speeches to his name during the 1628 session, no one could doubt the seriousness of his purpose.62 As in 1626 he was briefly required to attend the Lords, this time as counsel to Lady Purbeck, the mistress of Sir Robert Howard. Of the ten legislative committees to which he was named, he certainly took an interest in the one concerned with the earl of Arundel’s estates (11 June), as he was later rewarded for his ‘careful pains and good endeavours’ during the bill’s passage. During a debate on whether Englishmen who accepted Irish peerages should pay a higher rate of subsidy (10 June), he engaged in special pleading; while conceding that such men effectively rendered themselves aliens, and might be assessed accordingly, he argued that an exception should be made for those who had inherited such honours and were also English peers, such as his patron the earl of Kent.63

Selden continued to show relatively little interest in religious matters. On 9 May, during the debate on how to punish the anti-Calvinist Richard Burgess, he argued that rather than petition the king, the Commons should refer the case straight to Convocation, as this was what Charles would probably do himself. He also intervened on 14 May to oppose on procedural grounds a proposal for a bill of attainder against Roger Manwaring. As a result he was added to the committee to prepare charges against Manwaring, but the fact that he was twice reappointed suggests that he failed to attend the meetings.64 The nearest he came to making theological statements was in relation to the bill for subscription to the articles of religion. On 17 May he complained that turning the clock back to the statutory confirmation of the Thirty-Nine Articles in 1571 would invalidate several of the 1604 Canons. The debate was interrupted, and when it resumed four days later he obtained special leave to speak again, contrary to convention. After reiterating his basic point, he asserted that as there was nothing intrinsically objectionable about the Canons in question, the bill was evidently aimed purely at readmitting those puritan clergy who had refused to subscribe to them.65

Although named to the committee for privileges, Selden had little to say on the Commons’ liberties compared with his 1626 performance. On 28 Apr. he successfully opposed Sir Simeon Steward’s request to waive parliamentary privilege in order to answer a Star Chamber subpoena, warning that it would set a dangerous precedent. He also advised against committing a Lincolnshire deputy lieutenant to the custody of the serjeant-at-arms as a delinquent, lest the Commons find themselves accused of assuming powers of judicature (10 May).66 Selden’s main target in 1628 was the group of Cornish gentlemen who had attempted to block Sir John Eliot’s election as a knight of the shire. On 20 Mar. he sought to broaden the Commons’ inquiry to cover any similar cases of electoral malpractice, and although his proposal was not adopted he was subsequently named to all six select committees relating to this drawn-out affair. Selden tended to take a hard line on all privilege issues, but his intemperate reactions to this particular saga, such as his bid on 12 May to deny the Cornishmen access to legal advice when they appeared before the Commons, probably reflected an increasingly close political alliance with Eliot.67

On 24 Mar. Selden was named to the committee to draft a bill to reform abuses in impressment, but his principal objective at the start of the session was to address the issues outstanding from the Five Knights’ Case. Reminding the House on 25 Mar. that he had been one of the defence lawyers, he argued that the court’s failure to reach a judgment left the door open to perpetual arbitrary imprisonment. As the judges had apparently ignored much of the evidence presented, he challenged the Crown’s lawyers ‘to come in and defend what was done if they can’. Two days later he paraded the key statutes and precedents used by the defence team in November 1627, and addressed the objections raised at the time by attorney-general Heath and the lord chief justice, (Sir) Nicholas Hyde*, drawing on his knowledge of European sources to assert that ‘no prince in Christendom claims that privilege’ of discretionary imprisonment.68 In effect Selden had now set out the case on which the Commons would fight this issue, and on 28 Mar. he secured a committee to search out the relevant legal precedents so that they would be available to all Members. His initial report to the House on 31 Mar. was alarming. The committee was unable to locate a copy of Lord Anderson’s resolution of 34 Elizabeth, cited by Heath during the Five Knights’ hearings. Moreover, it had evidence that the government was trying to make it appear that the 1627 case had been resolved in its own favour. Although the judges had carefully avoided giving a formal ruling, a draft judgment had been prepared on one of the five applications for habeas corpus, and if this were enrolled it would establish a legal precedent for future detentions by royal command.69 Further inquiries confirmed that the attorney-general was responsible for the draft judgment. At this point Eliot produced the missing Anderson resolution, which turned out not to support the Crown’s claims, while Selden obtained expert advice from the Crown Office clerks which undermined precedents cited by Heath in November. In barely 24 hours of high drama, Selden convinced the House both of the seriousness of the habeas corpus dispute and the weakness of the government’s arguments. The Commons accordingly agreed to condemn arbitrary imprisonment (1 Apr.), and thereby paved the way for a conference with the Lords on the liberties of the subject.70

Over the next few days Selden seemed intent on raising the stakes. On 2 Apr. he observed that abuses in billeting were ultimately the responsibility of the Privy Council, while the following day he questioned the legal basis for foreign military service. On 3 Apr. he was appointed to the committee to plan a strategy for securing liberties, and the next day argued against accepting the king’s offer to guarantee liberties in return for speedy supply. Inevitably he was also selected to speak at the forthcoming conference.71 When the two Houses met on 7 Apr., the Commons’ presentation closely followed the lines earlier sketched out by Selden. He himself expounded at considerable length on the process of habeas corpus and its attendant precedents, systematically refuting the attorney-general’s arguments employed in the Five Knights’ Case. He also condemned Heath’s draft judgment as ‘contrary to all precedents of former times, and to all reason of law, to the utter subversion of the chiefest liberty and right belonging to every free man of this kingdom’.72 Selden had now placed himself firmly in the firing-line, and the tension of the situation spilled over into his comments on 9 Apr. during the debate on John Baber, a Member who had co-operated with billeting in Somerset. Responding to Baber’s excuse that he had acted only to avoid official censure, Selden called for him to be expelled: ‘he that feareth in the country, I think, will fear here too, and he that doth so is not fit to sit here’.73 Meanwhile, in the Lords the attorney-general attempted to disprove the Commons’ arguments about habeas corpus. The 2nd earl of Suffolk (Theophilus Howard, Lord Walden*) emerged from this discourse under the impression that Selden had tried to strengthen his case by erasing an original record, and on 12 Apr. he loudly informed several Members of the Lower House that the lawyer deserved to be hanged, both for this crime and for stirring up sedition. Suffolk’s remarks were reported in the Commons on 14 Apr., and Selden, hotly denying the allegations, demanded that a formal protest be sent to the Lords. Dissatisfied with the earl’s hasty retraction, Members pursued their inquiries for another three days, identifying Selden’s patron Hertford as a potential witness, until stonewalling by the peers persuaded them to let the matter rest.74

By now, Selden’s attention was shifting to a new target. On 11 Apr., alarmed by reports that deputy lieutenants were interfering with local commissions of the peace, and that men were being executed under martial law, he warned the House that the normal protection offered by the Common Law was being undermined, and called for a debate in a few days’ time. In the interim he assembled yet another armoury of precedents, returning to the Commons on 15 Apr. with a long and learned discourse on the history of martial law and its proper jurisdiction. While maintaining that he was in no sense questioning the Crown’s entitlement to issue such commissions, he hedged their operation round with so many caveats and restrictions that, in the final reckoning, he viewed martial law as valid only when the normal administration of justice was totally unfeasible, as on a battlefield. In short, while he could not legitimately seek the abolition of martial law, he was determined to demonstrate that its use for billeted soldiers in peacetime was a major grievance.75

However, the battle over habeas corpus was still far from settled. Eliot especially was concerned that Heath was winning the peers round to his interpretation of the law, and much still rested on a showdown between the two sides during a forthcoming conference. In the event this confrontation ran over two days (16-17 Apr.), and Selden was in the thick of the action. On the first day, Heath picked over each of the precedents cited on 7 Apr., attempting to impose his own interpretations. At every twist and turn, however, Selden was ready for him, the complete master of his brief, authoritative and self-confident. The dialogue was extremely technical, with the argument frequently depending on marginalia on the original records, or the procedures of court clerks. In one instance Heath was able to produce new evidence which temporarily wrong-footed Selden, but the latter several times embarrassed the attorney-general with his superior knowledge of the compilation of court-rolls. This was the full-blooded exploration of the issues which the defence lawyers had been denied in November 1627, but in essence the argument remained the same. Heath insisted on the relevance of additional factors such as multiple offences committed by defendants, or Privy Council interventions opposing or favouring bail. Selden, however, consciously recycling chief justice Hyde’s summing-up from the original hearing, repeatedly argued that the verdicts described in the precedents were reached purely on the basis of the limited information provided on the returns submitted to the court. In other words, where the attorney-general sought to prove that judges used their discretion in deciding whether to grant bail, Selden fought for the principle that the Common Law was predictable in its execution, and therefore capable of guaranteeing liberties.76 On the second day of the conference the debate moved onto some of the broader issues. Heath at first appeared more willing to reach an accommodation with the Commons, providing that they acknowledged the necessity of the Crown retaining a discretionary power to imprison without specifying the cause. Selden, however, showed no interest in compromise. Provocatively, he observed that whereas the attorney-general was merely fulfilling his official function as the king’s servant, ‘the gentlemen that spoke in behalf of the House of Commons came there, bound ... by the trust reposed in them by their country that sent them, and ... bound also by an oath ... to maintain and defend the rights and prerogatives of the crown’. Secure in the knowledge of his superior calling, he then dismissed a number of supplementary objections raised by Heath, concluding that

no such opinion whatsoever can be sufficient to weaken the clear law comprehended in these resolutions of the House of Commons, grounded upon so many acts of Parliament, and so many precedents of record ...; and against which not one law, written or unwritten, not one precedent, not one reason, hath been brought that make anything to the contrary.77

These were powerful words, but they did more to confirm the resolve of the Lower House than to ease the impasse. The gulf between Selden’s interpretation of the Common Law and the Crown’s understanding of its rights remained as broad as ever, and this fundamentally political problem was not going to be settled simply by legal disputation. However, Selden was a much better lawyer than he was a politician, and even if he recognized this difficulty, it is doubtful whether he was prepared to acknowledge the limitations of his tactics.

While the Lords mulled over what they had heard, Selden continued to pursue the problem of martial law. On 19 Apr. he reiterated the basic position that he had laid down four days earlier. In his eyes the key issue was whether the commissions were legal. With a side-swipe at civil lawyers, who were prepared to contemplate factors such as convenience, he argued that proper law was founded only on custom or parliamentary statute, not on the Privy Council’s pronouncements. Three days later, however, he conceded that the Common Law did recognize the concept of martial law in very specific circumstances, and proposed a new bill to address the current difficulties. This would require careful preparation, and the House agreed to a committee to review previous martial law commissions, to which Selden was of course appointed. He was ready to report back on 25 Apr., but his account of the precedents had reached only the reign of Henry IV when he was interrupted by a request from the Lords for a further conference on liberties.78

Selden was utterly unimpressed by the proposals that the peers now unveiled for guaranteeing subjects’ freedoms. As he explained during the Commons’ debate on 26 Apr., the Lower House had presented ‘resolutions of law, and no man can make question of them; ... but now their Lordships, laying them by, now propound they what they would have to be law’. Of the five propositions, one was a nonsense; the king always acted within the law, therefore how could he be invited to do so? For the rest, either they offered meaningless gestures, such as a fresh confirmation of Magna Carta, or, on the matter of habeas corpus, made concessions to the Crown contrary to the Commons’ recent resolutions. Not surprisingly, he rallied behind Wentworth’s counter-proposal for a bill of liberties, and was named both to help draft this measure and then to consider it in committee (28 April), monitoring the text closely to ensure that citations of earlier statutes were absolutely accurate.79 When this strategy foundered, Selden was not immediately convinced by Coke’s alternative scheme for a Petition of Right. As he observed on 7 May, a petition would not have the same force as an Act of Parliament, and he briefly floated the radical idea that ministers of the Crown should instead be answerable to both king and Parliament. Nevertheless, the Petition offered a way forward for his campaign against martial law. Having concluded his report and secured a vote that the implementation of the existing commission constituted a grievance, he was promptly named to the sub-subcommittee to draft an additional section to the Petition, and finished this task in time for the complete document to be presented to the House on 8 May.80

Following the Lords’ attempts to modify the Petition’s wording, Selden was named on 13 May to the committee to draft the explanation for why the Commons had rejected most of the peers’ amendments. On 19 May he firmly opposed the Lords’ latest concession that arbitrary taxation might sometimes be justified, and the next day insisted that the oath used to help enforce the 1626-7 Forced Loan was contrary to the Common Law and statute, a point which the Upper House shortly afterwards conceded. However, he reserved his greatest scorn for the Lords’ proposed addition acknowledging the Crown’s sovereign power. As Selden explained on 22 May, this was completely inappropriate. Royal prerogative undoubtedly had its place, but not in a declaration of subjects’ liberties: ‘if we agree to the annexing of this addition, then summarily it will be that we shall petition that there may be no loans, nor men imprisoned without showing cause, no martial law, except by sovereign power’. Taken to its logical extreme, such a concession would leave landowners unable to defend their property rights if the king possessed an interest. On the following day he was appointed to assist the speakers when the Commons presented their latest objections, and his analysis of the addition proved decisive in persuading the Lords to abandon it.81 Selden was appointed to attend the conference where the peers finally agreed to unite with the Commons behind the Petition, and he was also nominated to the committee to decide how the document should be presented to the king (26 and 27 May). Nevertheless, he remained doubtful about the binding force of the Petition even after Charles’s second, satisfactory answer, arguing on 12 June that supply should be withheld until both the Petition and the king’s reply were enrolled as legal records and printed for general circulation. On 18 June he expounded on the administrative procedure for enrolment, to which the Lords had now agreed, and two days later he was appointed to the conference to settle the Petition’s formal title.82

Selden’s suspicions were also apparent in his response to Eliot’s proposal for the drafting of a Remonstrance against Buckingham. On 5 June, when Edward Kirton alleged that the king’s message warning the House to desist must have been prompted by sinister forces at Court, Selden called for the committee appointed to draft a reply to Charles to ‘consider of the command also, and for the safety of the king and kingdom’. With emotions running high, he urged that this message should explain that Buckingham was working against the Commons for fear of being exposed, and he attempted unsuccessfully to rally support to revive the 1626 impeachment proceedings. As the message took shape, he argued that, as in the previous Parliament, Buckingham should be identified as the cause of the nation’s ills.83 On 11 June Selden was named to the committee to draft the Remonstrance. When it was reported in the Commons, he complained that the document did not yet address the problem of Buckingham’s excessive power, and proposed that it should specifically request the king to consider the dangers posed by an over-mighty subject. Though this was highly controversial, the Remonstrance was recommitted to address this point. Having won the argument, he then reported the amended text to the House later the same day.84

Selden was now beginning to see underhand dealings wherever he looked. On 13 June, with the attorney-general apparently trying to withhold advance notice of the heads of the pardon bill, he helped convince Members that they should insist on seeing a copy. When he reported from the committee for examining the bill on 25 June, he revealed that it did indeed include several innovations, such as the exclusion from pardon of those who had avoided compounding for knighthood. In the session’s closing few days he also devoted considerable effort to persuading the House that the Crown’s attempt to obtain the estate of William Bowdler, on the grounds of the dead man’s illegitimacy, constituted both a grievance and a real threat to property rights.85 In previous parliaments Selden had shown relatively little interest in economic matters, but on 7 June, the same day that he was named to help draft the preamble to the subsidy bill, he alerted the House to a warrant for an excise commission, a new financial expedient which the government was apparently keen to keep under wraps. During the next four days he established not only that the warrant had already passed the Great Seal, but also that it had been authorized by the Privy Council.86 On 19 June he was appointed to the committee to check the paperwork relating to an impositions commission that the Commons had already forced the king into cancelling. However, only two days later the House found itself investigating secret plans for a new book of rates. When it emerged that one of the principal movers behind this project, the Member Sir Edmund Sawyer, had sought to subvert a witness brought before the Commons, Selden concurred with the general view that he should be sent to the Tower and permanently debarred from the House. The session ended with a Remonstrance against the Crown’s continuing collection of Tunnage and Poundage without parliamentary approval, and whether or not Selden was willing to acknowledge the Commons’ own repeated failure to resolve this particular grievance, he was evidently starting to focus on the government’s collection of revenue as another major cause for concern.87

Relatively little routine business was transacted during the 1629 parliamentary session. Selden was the first person named to the bill committee concerned with the Charterhouse foundation in London (20 Feb.), and received four other legislative appointments. However, his mind was on more serious matters. The duke of Buckingham had been assassinated during the recess, but it was far from clear that this event had brought about the hoped-for reformation of government. On 21 Jan. Selden moved for a select committee to check how the Petition of Right and the king’s answer had been enrolled, and also to inspect the Commons’ Journal. He most probably knew what they would find, and shortly afterwards he reported that the Journal now contained Charles’s closing speech from the previous session, in which he had sought to minimise the significance of the Petition. When Eliot then reminded Members that the printed version of the Petition included the king’s first, unsatisfactory answer, Selden launched into a condemnation of violations of the Petition during the recess, from arbitrary imprisonment to the seizure of goods from merchants who refused to pay Tunnage and Poundage. Highlighting the case of a man sentenced by Star Chamber to lose his ears, he claimed that ‘next they will take our arms, and then our legs, and so our lives. Let all see that we are sensible of these customs creeping upon us’. The House duly agreed to a debate on liberties, and also established a committee to investigate the printing of the Petition. Selden reported from this body on 22 Jan. that a first edition containing the king’s acceptable reply had been pulped on Charles’s own orders.88 In short his worst fears about the binding force of the Petition had been realized, and there was further evidence to come that the Commons was now being treated with contempt. On 30 Jan. he was handed the chair of a committee to examine the case of Henry Alleyne, who had denounced parliamentary critics of the royal prerogative as ‘puritans’, and his report on 7 Feb. stressed the serious implications of this libel.89

On 22 Jan. the Member John Rolle informed the House that his goods had been seized the previous autumn because he had refused to pay Tunnage and Poundage. As Parliament had originally been intended to resume on 20 Oct. rather than in January, the incident had coincided with a period technically covered by parliamentary privilege, which Rolle had claimed but to no avail. Given that a further prorogation had ensued, this interpretation of privilege stretched the rules to the limit. Nevertheless, the situation was comparable to the case of Sir Robert Howard in 1626, and from the outset Selden was keen to pursue the issue. However, for the moment he had to settle for nomination to the committee established to hear Rolle’s complaint. The government’s preferred solution to the Tunnage and Poundage problem was that Parliament should speedily grant these levies to the king, a step which had now been delayed for nearly four years. Selden made his attitude clear on 26 Jan., when he speciously argued that the legislation counted as a subsidy bill, which by tradition should not be considered until later in the session.90 The attorney-general’s extraordinary blunder on 9 Feb., when he allowed a subpoena to be served on Rolle in a parliamentary committee, put the question of privilege firmly back on the Commons’ agenda. On the following day, Selden described Heath’s action as a deliberate provocation: ‘this violation of our liberties he doth not believe to be an error or mistake but to proceed from the mildness of our proceedings against such as have offered violations to ... privileges’. Accordingly, he urged the House to take under its protection other merchants in Rolle’s position who had merely petitioned the Commons for assistance. He also called for vigorous action against offenders, recommending the imprisonment of William Acton, one of London’s sheriffs, who had delayed implementing a writ of replevin for the release of Rolle’s goods, allowing the attorney-general to obtain a stay of proceedings through the Exchequer court. In the meantime, a further committee was established to examine the subpoena incident, presided over by Selden, who won permission on 11 Feb. to examine the cases of other merchants as well.91

Eliot and Selden now set about trying to recover the confiscated goods. The strategy which they outlined the next day rested on a narrow interpretation of the law. The Exchequer had blocked Rolle’s replevin on the basis that the confiscated goods were being held by the Crown in lieu of Tunnage and Poundage. As Parliament had not yet granted these levies to the king, this was technically incorrect. Selden therefore recommended a message to the Exchequer barons clarifying the facts, in the belief that they would accept their mistake and release the goods. The House agreed, and he was appointed to chair the committee to draft this letter. Political reality then intervened. The barons declined to co-operate, and although Selden was appointed to another committee on 14 Feb. to consider this response, it was clear that a fresh approach was needed. Rapidly running out of options, he proposed action against the customs farmers who had seized Rolle’s goods in the first place.92

The difficulty that now arose was whether the Commons was actually entitled to punish the customers. The deciding factor was Rolle’s claim to parliamentary privilege. Assuming that his goods were covered, then the customers were in contempt for refusing to restore them, and could be treated as delinquents, providing, that is, that they had seized them for their own benefit. However, if Rolle’s property had been confiscated on behalf of the Crown, it was not certain that privilege did apply. This was an extremely high-risk tactic which virtually guaranteed confrontation with the king, but Selden on 19 Feb. remained adamant that there was no choice: ‘in former times, when privilege came in question, no matter proceeded till that was determined; if not they will come shortly and take the mace from before you, and say they have a commission for it’. Predictably, the customers argued that they had acted for the king, but on 20 Feb. Selden helped to examine the contract for the customs farm, and concluded that this was not in fact the case. On the following day, he again insisted that the Commons’ dispute was with the customers, not the Crown, and that the Exchequer barons were misguided in refusing to restore Rolle’s goods. Nevertheless, the whole concept of parliamentary privilege was endangered if the courts were permitted to hamper its operation, and Selden asserted that privilege of goods might indeed be claimed even against the Crown. With some hesitation the Rolle committee agreed that privilege should be granted, and the decision was ratified by the full House on 23 February. The king thereupon took responsibility for the customers’ actions, and Selden’s strategy finally collapsed. With nowhere left to turn, he was reduced to arguing that, like any other Westminster court, Parliament should proceed in its rightful business regardless of royal commands, but his opinions no longer carried credibility.93

Selden’s failure sprang in part from his deep-seated conviction that political problems could be resolved by legalistic means, but his increasingly desperate efforts to uphold the Commons’ independence were not simply inspired by the issue of Tunnage and Poundage. During this session recent religious developments seem also to have convinced him that the government could no longer be trusted to uphold the law. Theologically he remained unsympathetic towards the Calvinist wing of the Church of England, and on 31 Jan. objected to a proposal that the Synod of Dort’s doctrinal resolutions should be used to help define Anglican orthodoxy.94 However, he displayed increasing concern about the Crown’s patronage and protection of Arminians and Catholics. On 30 Jan. and 4 Feb. he questioned whether the correct procedures had been followed when Richard Montagu was elected bishop of Chichester. During the recess the king had pardoned Montagu and three other controversial clerics, John Cosin, Robert Sibthorpe and Roger Mainwaring, and on 4 Feb. Selden was named to the committee to examine the matter. He reported back two days later with the disturbing news that Montagu had been allowed to help draft his own pardon; further inquiries revealed that Mainwaring had even been pardoned for future offences. On 11 Feb. he condemned Star Chamber censorship of attacks on popery and Arminianism as an attack on the liberties of the subject.95 The decisive incident for Selden, though, was apparently the treatment received by a cell of Jesuits discovered in Clerkenwell shortly before the start of the 1628 parliamentary session. He had attended their trial in King’s Bench, and on 13 Feb. drew attention to the fact that only one of the ten had been condemned. Such an outcome proved that the papists had ‘some strong and great persons that countenance them’. On the following day he claimed that although clear evidence of treason had been presented during the trial, the judges had proceeded in a way calculated to secure the defendants’ acquittal, and he called for a committee of inquiry. On 16 Feb. it emerged that the one Jesuit convicted of treason had been granted stay of execution on the Crown’s orders, and that the attorney-general had been instructed to prosecute most of the priests on lesser charges. Selden reported from the investigating committee that the judges had actually refused to examine some of the evidence presented against them, even though it was supplied by Heath himself. It was beginning to look as though even the attorney-general was being prevented from enforcing the law. When Secretary Coke attempted to play down the significance of this discovery by pointing out that the same paperwork had been used to justify confiscating the Jesuits’ goods, Selden observed with bitter irony that a replevin was grantable out of the Exchequer. He had made the connection between the government’s covert protection of treasonable Catholics, and its denial of the property rights of those he considered to be law-abiding Protestants. Moreover, it was becoming clear that these policies emanated from somewhere close to the king.96 Just three days later he launched into his doomed bid to assert parliamentary privilege at all costs. On 2 Mar., with the Parliament on the verge of dissolution, Selden supported Eliot’s Remonstrance attacking lord treasurer (Sir Richard) Weston* as the evil genius responsible for perpetuating Buckingham’s legacy. Attempting unsuccessfully to secure a formal reading of the document, he denounced the Speaker’s obstruction as a blatant denial of free speech. He was summoned before the Privy Council the next day, and on 4 Mar. was confined to the Tower.97

Examined on 18 Mar., Selden denied any clear recollection of the tumultuous events on the day of the dissolution, and generally distanced himself from Eliot’s statements, endeavouring to discount any notion of prior complicity between them. The Crown, however, firmly believed that there had been a conspiracy, and in May 1629 Selden was prosecuted with the other eight suspects in Star Chamber. Like Eliot, he argued that only Parliament could punish Members for offences committed in the Commons, and the judges unexpectedly accepted this argument, forcing the abandonment of the trial. In the meantime, Selden had sued out a writ of habeas corpus, but the government contrived to delay his release until October, when he was finally offered bail on condition that he was bound over for good behaviour. Believing that acceptance of this deal would prejudice his cause in the long term, he rejected it, and although he was not in fact prosecuted any further over the events in the Commons, he remained confined until May 1631, when his old ally Arundel intervened on his behalf.98

In November 1632 the Inner Temple lifted its ban on Selden’s promotion, and a year later he was appointed a bencher. At Christmas 1633 he helped organize the masque put on by the inns of court for the king. This was effectively a first step on the road towards rehabilitation. Since 1631 he had been bound over to appear every term before King’s Bench, but with the assistance of Archbishop Laud he was finally freed of this indignity in February 1635. In return, he was expected to place his considerable intellectual gifts at the Crown’s disposal. Selden had already issued a second edition of Titles of Honour (1631) in which he revised the text to emphasize the importance of monarchy. In late 1635, he at last published Mare Clausum, which was received with considerable acclaim, and in the following January he was even rumoured to be under consideration for appointment as secretary of state.99 However, his new-found loyalty proved short-lived. Elected to the Long Parliament as a Member for Oxford University, he sided with Charles’s opponents during the Civil War, serving in the Westminster Assembly and obtaining the keepership of the records in the Tower of London. In January 1647 the Commons awarded him £5,000 compensation for his sufferings in 1629, though it is unclear how much of this money he eventually received. Secluded at Pride’s Purge, he spent his final years in sociable and scholarly retirement. Although the earl of Kent had died in 1639, Selden remained on intimate terms with his widow, whom he was rumoured to have married. His researches into the earl of Arundel’s collection of antique marbles, published in 1628 as Marmora Arundelliana, helped to establish his reputation as an orientalist, which was crowned in 1650 by his late masterpiece, De Synedriis et Praefecturis Iuridicis Veterum Ebraeorum. He died in November 1654, reputedly a very rich man, and was buried in London at the Temple Church.100

Ref Volumes: 1604-1629

Author: Paul Hunneyball

Notes

• 1. Ath. Ox. iii. 366-7.
• 2. Al. Ox.
• 3. Ath. Ox. iii. 367.
• 4. I. Temple Admiss.
• 5. Ath. Ox. iii. 377.
• 6. D.S. Berkowitz, John Selden’s Formative Years, 14.
• 7. Ath. Ox. iii. 378.
• 8. Recs. of Virg. Co. ed. S.M. Kingsbury, i. 395; ii. 98.
• 9. CITR, ii. 208.
• 10. Ath. Ox. iii. 377; Berkowitz, 65.
• 11. LMA, Acc/1876/G/02/02, ff. 72, 141.
• 12. A. and O. i. 927, 973, 1090; ii. 139.
• 13. Ibid. i. 181.
• 14. CSP Dom. 1650, p. 476.
• 15. A. and O. i. 343, 669, 839, 853, 937, 1208.
• 16. Autobiog. of Sir Simonds D’Ewes ed. J.O. Halliwell, i. 256; Ath. Ox. 367, 377; Berkowitz, 13-14.
• 17. Ath. Ox. iii. 377; K. Sharpe, Sir Robert Cotton, 101-2, 107; Berkowitz, 28; Bodl. Selden Supra 108, ff. 13, 93, 122, 174-5v.
• 18. Berkowitz, 33-5, 40-1.
• 19. P. Christianson, Discourse on Hist., Law and Governance in the Public Career of John Selden, 29; Berkowitz, 27, 41-6, 48-9.
• 20. G. Burgess, Pols. of Ancient Constitution, 6-7, 37-8, 64-8; Christianson, 82.
• 21. Burgess, 5; J.P. Sommerville, ‘King James VI and I and John Selden’ in Royal Subjects: Essays on the Writings of James VI and I ed. D. Fischlin and M. Fortier, 308-13; Berkowitz, 76-8; Christianson, 7, 17.
• 22. Berkowitz, 35-40, 54-5; Christianson, 64, 69-70, 84-5.
• 23. Recs. of Virg. Co. i. 395.
• 24. HMC Hastings, iv. 286; Berkowitz, 58-60, 63; C.C.G. Tite, Impeachment and Parl. Judicature in Early Stuart Eng. 32-6.
• 25. Berkowitz, 60-1; C. Russell, PEP, 107, 122; Nicholas, Procs. 1621, ii. app.; APC, 1621-3, p. 24; HMC 3rd Rep. 25; LJ, iii. 176a, 196b.
• 26. Recs. of Virg. Co. ii. 98; Berkowitz, 30-1; Cott. Julius C.III, f. 341; Bodl. Selden Supra 108, ff. 151v, 185v.
• 27. Recs. of Bor. of Nottingham, iv. 387; J.K. Gruenfelder, Influence in Early Stuart Elections, 77.
• 28. CJ, i. 683a, 685a, 736b, 750b.
• 29. Ibid. 739a-b, 767a; ‘Nicholas 1624’, f. 85v.
• 30. CJ, i. 695a, 703b, 754b, 757b, 770b, 773a.
• 31. Ibid. 764b; C.R. Kyle, ‘Attendance Lists’, PPE 1604-48 ed. Kyle, 200.
• 32. ‘Pym 1624’, i. ff. 38v, 50; iii. f. 35;
• 33. CJ, i. 749b, 753b, 765b; ‘Nicholas 1624’, f. 151; Christianson, 94.
• 34. CJ, i. 691b, 756a, 758a; Kyle, 225.
• 35. ‘Pym 1624’, i. ff. 51v, 87v; ‘Earle 1624’, f. 152v; CJ, i. 697b.
• 36. CJ, i. 744a-5a; Holles 1624, p. 46; T. Cogswell, Blessed Revolution, 211.
• 37. CJ, i. 752a, 762a, 768a; ‘Nicholas 1624’, f. 174; ‘Earle 1624’, f. 179r-v.
• 38. Holles 1624, p. 54; R.E. Ruigh, Parl. of 1624, p. 234; ‘Nicholas 1624’, f. 167v; ‘Pym 1624’, i. f. 77.
• 39. ‘Nicholas 1624’, ff. 155v, 215; CJ, i. 789a.
• 40. CJ, i. 692a-b, 707a-b, 713a, 793b, 796b; Berkowitz, 92.
• 41. CITR, ii. 145-6, 151.
• 42. Gruenfelder, 162, 181; Berkowitz, 98-100; Christianson, 94-5.
• 43. Procs. 1626, ii. 21, 32, 44, 53, 69.
• 44. Ibid. 175; iii. 318, 329, 332.
• 45. Ibid. ii. 36, 38, 40, 83-4, 105; iii. 407, 409; Christianson, 97.
• 46. Russell, 285.
• 47. Christianson, 97-8.
• 48. Procs. 1626, ii. 61, 63-5, 68.
• 49. Ibid. ii. 327-9, 330-3; iii. 99, 102, 144, 150; Christianson, 103.
• 50. Ibid. ii. 128-9, 246, 248; iii. 16, 350; Berkowitz, 38; N. Tyacke, Anti-Calvinists, 146.
• 51. Procs. 1626, ii. 103, 109, 261.
• 52. Ibid. 150-1, 158, 230-2.
• 53. Ibid. i. 131; ii. 327, 343, 345.
• 54. Ibid. ii. 370; iii. 38, 40, 46, 50; Tite, 191.
• 55. Procs. 1626, iii. 140, 143, 162, 182-4.
• 56. Ibid. iii. 192-3, 195, 203-4, 210-11, 215, 265.
• 57. Ibid. iii. 303, 305, 415-6, 423-4, 433, 445; Tite, 201-2.
• 58. De Iure Maiestatis and Letter-Bk. of Sir John Eliot ed. A.B. Grosart, ii. 6- 9; Bodl. Selden Supra 108, f. 101.
• 59. Tite, 36-7; Berkowitz, 128.
• 60. Historical Collections ed. J. Rushworth, i. 459; Christianson, 116-22.
• 61. Gruenfelder, 163; H. Hulme, Life of Sir John Eliot, 184; Lords Procs. 1628, v. 313, 321.
• 62. CD 1628, ii. 221; iv. 47.
• 63. Lords Procs. 1628, v. 171 n. 1; CD 1628, iv. 229, 236; Arundel, ms G1/10.
• 64. CD 1628, iii. 346, 404, 406, 429; iv. 36.
• 65. Ibid. iii. 451, 455, 512, 517, 521.
• 66. Ibid. ii. 29; iii. 136, 363.
• 67. Ibid. ii. 29, 38, 480; iii. 3, 5, 9, 378, 381, 386, 393; iv. 3, 388.
• 68. Ibid. ii. 78, 106, 109, 150-2, 154-5, 158-9.
• 69. Ibid. 176, 185, 211-12, 217-18.
• 70. Ibid. 229-30, 232, 234-6, 238, 241; Procs. 1628, vi. 41.
• 71. CD 1628, ii. 255, 268, 277, 279-81, 286-7, 296, 299-300, 315, 324, 331.
• 72. Ibid. ii. 342-56; Lords Procs. 1628, v. 163-4; Christianson, 130-1.
• 73. CD 1628, ii. 378, 388.
• 74. Ibid. ii. 444-8, 454, 456, 460, 469, 508-12; Procs. 1628, vi. 95-6.
• 75. CD 1628, ii. 417, 462-5, 467-9.
• 76. Ibid. ii. 433, 492-9, 501-2; Lords Procs. 1628, v. 249-52, 295-6; Historical Collections, i. 462.
• 77. CD 1628, ii. 525-7, 538; Lords Procs. 1628, v. 291, 300.
• 78. CD 1628, ii. 565-6, 568, 572; iii. 25, 28, 33, 72-4.
• 79. Ibid. iii. 96-7, 105-6, 122, 130, 176.
• 80. Ibid. 302, 304-5, 312-3, 317, 327, 329; Bodl. Selden Supra 123, f. 202.
• 81. CD 1628, iii. 397, 468, 478, 493-4, 533-5, 543-4, 548-9, 557; Burgess, 198.
• 82. CD 1628, iii. 611, 623; iv. 284, 364, 366, 369, 390.
• 83. Ibid. iv. 117, 121, 124, 126-8, 131.
• 84. Ibid. 237, 248, 266, 310, 321-3, 327-8.
• 85. Ibid. iv. 295, 302, 363, 367, 460-1, 473.
• 86. Ibid. 178, 181, 184, 188, 190, 199-200, 241.
• 87. Ibid. 373, 408-9, 415-16.
• 88. CJ, i. 920b-1b, 931b; CD 1629, pp. 4-5; HMC Lonsdale, 61.
• 89. CJ, i. 925a-b, 927b; CD 1629, p. 132.
• 90. HMC Lonsdale, 61-2; CJ, i. 921a; CD 1629, p. 108.
• 91. CD 1629, pp. 136-7; CJ, i. 928b-9a.
• 92. CD 1629, pp. 62, 74, 143, 147, 199-200, 210; CJ, i. 930a.
• 93. CD 1629, pp. 90-1, 157, 160, 165, 169, 223, 227, 231-2.
• 94. Ibid. 119-20; HMC Lonsdale, 68.
• 95. HMC Lonsdale, 67; CD 1629, pp. 36, 45, 58-9, 124, 175, 179.
• 96. CD 1629, pp. 79-80, 145, 148-9, 152-3, 215-16; HMC Lonsdale, 72.
• 97. CD 1629, pp. 103-5, 171, 243, 264-5; APC, 1628-9, pp. 351-2.
• 98. CSP Dom. 1628-9, p. 496, 540, 543, 588-9; 1631-3, p. 61; SP16/143/9; 16/144/15; Berkowitz, 237, 244-6, 251, 256-7, 263-4, 266; C115/106/8397.
• 99. CITR, ii. pp. xlvii, 203; CSP Dom. 1634-5, pp. 256-7, 527; 1636-7, p. 379; HMC Hastings, ii. 77; Sommerville, 311-12; Strafforde Letters (1739) ed. W. Knowler, i. 373, 430, 491, 508.
• 100. CJ, v. 55b; HMC 6th Rep. 175; A. and O. ii. 100; D. Underdown, Pride’s Purge, 385; CSP Dom. 1639-40, p. 158; Ath. Ox. iii. 370, 372, 377-8, 380.