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The First English Legal History
John Selden. Jani Anglorum Facies Altera and England’s Epinomis. In Tracts Written by John Selden of the Inner-Temple, Esquire. London: Printed for Thomas Basset and Richard Chiswell, 1683.
Learning: “Most mens learning is nothing but History duely taken upp. If I quote Tho : Aquinas for some Tenet, & believe it, because the school-men say soe, that’s but History : few men make themselves masters of the things they write or speake.” Table-Talk.
Selden is generally regarded as England’s first legal historian—what his contemporaries had been content to consider history, Selden dismissed as fable. Influenced by the humanist movement spilling over from the Continent, Selden investigated the past to inform his understanding of the present. He consulted primary sources and read them closely, exemplifying the shift from medieval antiquarianism to a more modern approach to history. Selden himself termed this “synchronism.” Selden’s more rigorous approach is evident in even his earliest writings.
The title page shown here represents a collection of four works by Selden bound as a single volume, a space saving technique common to publishers of the era. While titles bound together occasionally have little in common, two of these are complimentary: Jani Anglorum Facies Altera (The Back-face of the English Janus) and England’s Epinomis, an allusion to a dialogue in the style of Plato. In addition to being among the first works of Selden’s career, they are also notable for being among his first efforts as a historian. Jani Anglorum was published shortly after completion in 1610, yet unaccountably England’s Epinomis was not published until 1681, well after Selden's death. While both discuss early English governance and laws, it is Jani Anglorum that first offered Selden’s vision of the English constitution as a mixed monarchy. For Selden, this meant a state with shared sovereignty between monarch, nobles, clergy, and freemen—a provocative position to the absolutist Stuart kings.
A Groundbreaking Study of European Nobility
John Selden. Titles of Honor. London: By William Stansby for John Helme, 1614.
Lords: “The Lords that are ancient wee honor, because we knowe not whence they were, but the new ones wee slight because wee know their beginning.” Table-Talk.
Selden’s scope of historical inquiry extended well beyond England, as revealed in Titles of Honor (1614). With its systematic delineation of the nobility, this work paved the way for Debrett’s Peerage and Burke’s Peerage, later reference works on the English aristocracy and genealogy. Selden approached the subject as a legal historian, and comparative law comprised a sizeable portion of the work. In the treatise, each chapter considered the derivation of a particular title and then explored its history and permutations throughout Europe from the Roman period to the modern era.
Selden produced a second edition in 1631, with expanded discourses on England that carried contemporary political ramifications. In investigating the origins of England’s political structure, Selden argued that the king had always been advised by assemblies, whether it be a “witenagemot” or a “parliament,” Norman conquest notwithstanding. By asserting such long-standing precedents for regular meetings, Selden signaled his opposition to the country's current political situation. The reigning king, Charles I, had called a Parliament out of necessity to raise funds in 1628, but then suspended it to avoid making concessions. The suspension lasted ten years. Selden was among the members of that session of Parliament imprisoned upon its dissolution. Selden may have used this enforced leisure to complete the second edition.
Selden Attacks the System of Tithes
John Selden.The Historie of Tithes: That is, the Practice of Payment of Them, the Positive Laws Made for Them, the Opinions Touching the Right of Them. [London?: s.n.], 1618.
Tythes: “Abraham paid Tythes to Melchizedeck, what then? twas very well done of him, it does not follow therefore that I must pay Tythes, no more then I am bound to imitate any other action of Abraham.” Table-Talk.
The publication of The Historie of Tithes in 1618 set off a political uproar. In this work, Selden demonstrated how the laity's financial obligation to support the church had arisen out of custom over centuries, not by a law of nature or divine right. To a modern reader it is a seemingly innocuous subject -- tithes being money paid to the church, with origins in the ancient period. However, Selden’s conclusions bore disturbing implications for the contemporary English church, namely, a loss of funds. The clergy protested Selden’s work vigorously with the support of King James I, who viewed the publication as an indirect threat to his own claim of rule by divine right. After being summoned by the lords of the high commission and privy council, Selden was forced to apologize for having given offense—short of an outright disavowal of his work—and the book was withdrawn from circulation. If Selden’s friend Ben Jonson had not interceded on his behalf, he might have faced even more dire consequences. In spite of a dangerously close brush with the authorities, over the ensuing decade Selden became still more involved in England’s constitutional contests.
The Historical Rights of the House of Lords
John Selden. The Priviledges of the Baronage of England, When They Sit in Parliament. London: Printed by T. Badger for Matthew Wallbanck, 1642. First Edition.
Warr: “To know what obedience is due to the prince you must look into the contract betwixt him & his people, as if you would know what Rent is due to the Landlord from the Tenant, You must look into the lease. Where the Contract is broken, & there is no Third person to judge, then the division is by Armes . . . Table-Talk.
In the 1620s the House of Lords hired Selden to research its privileges, in response to mounting tension between the king and Parliament. Before he was able to finish his work, Selden was arrested and confined without charge. Selden was eventually released, though it took many more months for him to retrieve his papers, the chief concern apparently being his notes for his report to the House of Lords. After first circulating in manuscript form, The Priviledges of the Baronage of England was eventually printed in 1642. Selden provided historical grounds for such “special rights” as freedom from lawsuits during the sitting of Parliament and the power of judicature --a topic he expanded upon in another work from the same period, Of the Judicature in Parliaments. Selden's exploration of such inflammatory topics catapulted him into the political fray.
For such a productive scholar, Selden had a notable political career. In 1624, Selden was elected to the House of Commons and served off and on until 1648. For Selden, Parliament reached its most dramatic point in 1628, a roiling session in which he joined Sir Edward Coke and others to compose a bill of rights. By the time it reached the king it had been diluted to the Petition of Right, but it was still an important precursor to the United States’ Bill of Rights. Throughout, Selden was a leading champion for such liberties as freedom from arrest and imprisonment without due process, and for freedom from seizure of personal property. The king had Selden arrested shortly after the dissolution of parliament in 1629. Charles I then had him moved to the Tower, outside the jurisdiction of the courts, and his study was sealed. Selden was not fully restored to freedom until 1634.
The First Definitive Work on the Dominion of the Sea
John Selden. Mare clausum: seu de dominio maris, libri duo. London: excudebat Will. Stanesbeius, pro Richardo Meighen, 1635. First Edition.
Evill Speaking: “Speake not ill of A great enemy; but rather give him good words, that he may use you the better, if you happen to fall into his hands.” Table-Talk.
Mare clausum was probably the most widely read of all Selden’s treatises. The work considered the question of dominion of the seas. The title literally translated from Latin means “enclosed sea,” in pointed opposition to the work Mare liberum, or “free sea,” published by Hugo Grotius in 1609. While Grotius, a prominent Dutch legal scholar, argued that the sea was openly navigable by all countries for trade, Selden countered that the sea was as subject to a country’s private dominion as land. Ultimately, the inexorable growth of global trade favored the cause of Grotius. Nonetheless, Mare clausum provided the basis of England’s official position on the seas for over 100 years. Although in time Selden's argument failed, his participation in the debate helped launch the field of modern international law. Mare clausum has a secure place in the canon of classic legal texts. Thomas Jefferson owned two copies, which, when he sold his book collection, formed part of the cornerstone of the fledgling Library of Congress. Shown below is a post-Restoration edition of the same work in English. The publication of Mare clausum was itself dramatic. Selden first drafted a version in 1618, but James I withdrew permission to publish it for fear of antagonizing the king of Denmark. Selden eventually published an updated draft in 1635, perhaps as a peace offering to Charles I. The book’s preface contains the dedication Pontus quousque serviet illi, “The sea will also submit to him,” a sentiment that also alludes obliquely to Selden’s own acquiescence. With this go-round, Selden’s views definitely appealed to Charles I—the king ordered a copy to be kept in the Council chest, another in the Court of Exchequer, and a third in the Court of Admiralty.
The history of the printing of Mare clausum paralells the era’s political reversals. Selden chose to write in Latin for its initial publication in 1635, the learned language of the time. However, with the rise of the Commonwealth and its more populist sentiment, an English translation was commissioned. The translator also replaced the dedication to Charles I with an epistle to the commonwealth. When Charles II was restored to the monarchy, a new printing in 1663 restored the original preface. For those owning the original translation, the Restoration made for an awkward dilemma. This was exactly the situation facing Samuel Pepys, the now famous diarist and then aspiring clerk in the Admiralty, which he rectified by installing the new title page for his copy. As he recounts in his entry for Friday, April 17, 1663: walked “to Paul’s Church Yard, to cause the title of my English Mare clausum to be changed, and the new title, dedicated to the King, to be put to it, because I am ashamed to have the other seen dedicated to the Commonwealth.”
Mare clausum: the Right and Dominion of the Sea in Two Books, Written at First in Latin by That Late Famous and Learned Antiquary John Selden, Esquire; formerly translated into English, and now perfected and restored by J.H. Gent. London: Printed for Andrew Kembe and Edward Thomas, 1663.
Marriage and Divorce in Judaic Law
John Selden. Uxor Ebraica: seu De nuptiis et divortiis ex jure civili, id est, divino & Talmudico, veterum Ebraeorum, libri tres ; ejusdem De successionibus ad leges Ebraeorum in bona defunctorum liber singularis,in pontificatum, libri duo. New edition. Frankfurt am Oder: Sumptibus Jeremiae Schrey, excudit Andr. Becmanus, 1673.
Religion: “Religion is like the fashion, one man wears his doublett slashed, another lac’d, a third plaine, but every man has a doublett. Every man has his Religion, wee differ about the trimming.” Table-Talk.
Despite the theological quarrels consuming the seventeenth century, Selden took a more detached view on religious faith. Although he wrote extensively about the history of religion over the years, he did so for the same reason he wrote about history generally—to discern past precedents for the composition of society in the present.
Selden continued to write until the end of his life. Among the titles issued in this later period are a series examining ancient Jewish law. In Uxor ebraica, completed by the early 1640s, Selden investigated the nature of marriage and divorce as explicated in the Torah, Talmud, and a variety of Jewish scholarly commentary. Interestingly, he concluded that these earlier systems had allowed for divorce when there was a reasonable cause and it was only later Christianity that introduced unprecedented stringency. Selden did have not a personal stake in this matter—he himself never married—athough there were rumors of a secret marriage to his patroness, the dowager countess of Kent. Assuming he did remain single it was perhaps for the best, since he is reported to have said, “Tis reason, a man that will keep a wife should bee att the charge of all her Trinketts, & pay all the scores she setts him on; hee that will keep a Monkey tis fitt hee should pay for the glasses she breakes.”
Uxor ebraica proved to be influential to John Milton, best known for his poetry, but also the author of such tracts as The Doctrine and Discipline of Divorce (1643). Though a generation younger, Milton knew Selden. Milton’s own works arguing for a liberal basis for divorce were suppressed, a shared setback that may have prompted a closer affinity to Selden. When Milton wrote Areopagitica, his storied defense of a free press, he proclaimed Selden “the chief of learned men reputed in this land.”
Selden's Most Popular Work
John Selden.Table-Talk: Being the Discourses of John Selden, Esq; or his Sence of Various Matters of Weight and High Consequence Relating Especially to Religion and State. London: Jacob Tonson, and Awnsham and John Churchill, 1716.Third edition.
Pleasure: “Whilst ye are upon Earth, Enjoy the good things that are here (to that end were they given) & be not Melancholly, and wish yourself in heaven.”
Following his death in 1654, Selden was buried in Temple Church, part of the Inner Temple where he had studied so many years earlier. According to one contemporary biographer, the philosopher Thomas Hobbes was at Selden’s deathbed and, hearing that a priest was coming to give absolution, reportedly exclaimed “What, will you that have wrote like a man, now die like a woman?” Selden had the minister turned away.
Selden is best known today for a work published thirty years after his death: Table-Talk: Being the Discourses of John Selden, Esq. The work is a collection of Selden’s pronouncements on a variety of topics in a conversational style, as recorded by his secretary, Richard Milward. First published as a political pamphlet quickly outpaced by events, it did not meet with immediate success. Re-titled and recast as the learned sayings of a great man to be read at leisure, it suddenly took off as part of a new genre of literature. Table-Talk showcased Selden’s sardonic wit, something difficult to discern in the rest of his writings.
Because most of Selden’s prose is both erudite and dense, generations of readers have gravitated to this more accessible work. Among its most famous admirers was Dr. Johnson, whose own Life of Samuel Johnson a century later owes something to Selden’s example. It is primarily through Table-Talk that most readers have become acquainted with Selden. And since, as a poet once wrote Selden, it is “an ignorance beyond barbarism not to know you,” it is fortunate that Table-Talk provides an opportunity to do so.