The Ancient Constitution

John Selden and the Western Political Tradition
by Ofir Haivry
Cambridge UP, 2017, 504 pages, $160
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The last decades of the sixteenth century and the first of the seventeenth witnessed the great flowering of English Renaissance culture. Shakespeare and Jonson transformed the theatre, Donne and Herbert poetry, Bacon and Hobbes philosophy and science. Drake circumnavigated the globe, Raleigh introduced tobacco to the English palate and thought he could find El Dorado. Ofir Haivry’s new biography claims that in an era of remarkable men and women, John Selden (1584–1654) stands out, “as the most learned man in an unusually learned age and of no less intellectual significance than contemporaries [like] Grotius and Hobbes”.

Considering the opposition, and the fact that outside a specialist community of scholars Selden remains an obscure figure, this is a remarkable claim, but it is not without substance. In recent decades, Selden has assumed growing academic stature. He has been the subject of a number of monographs, most notably G.J. Toomer’s two-volume exploration, John Selden: A Life in Scholarship. Toomer established Selden as “a man of extraordinary intellectual attainments”. The Oxford sinologist Timothy Brook revealed the variety of Selden’s scholarship in Mr Selden’s Map of China. Brook’s account of the adventures of Selden’s chart of the South China Sea begins with its discovery in the Bodleian Library in 2008. Selden acquired the map whilst composing a defence of the “soveraign guard of the seas” as “an inseparable appendant of the British empire”. The crown commissioned Selden’s Mare Clausum (The Closed Sea, 1618) to prove England’s rightful ownership of the North Sea (analogous to China’s current claim to the South China Sea) in response to Hugo Grotius’s Mare Liberum (1609) that asserted the freedom of navigation.

By the 1620s, Selden’s reputation as a historian and scholar was without peer, the “greatest living authority on the history of English law”. The House of Lords went to him “to know their privileges, and the Commons to know their rights”.

From a yeoman background in Sussex, Selden progressed from grammar school to Hart Hall, Oxford, and thence to the Inns of Court. In London from 1604, he not only became the leading philologist, scholar, antiquarian, barrister and parliamentarian of his generation, he also befriended poets and playwrights like John Donne, Michael Drayton, Francis Beaumont, John Fletcher, Will Shakespeare and Ben Jonson. An habitué of the Mermaid Tavern on Cheapside and “the fraternity of Sirenaical gentlemen” that met there every month, he was not always devoted to his studies. John Aubrey in his Brief Lives observed how Selden cuckolded the Earl of Kent and “had got more by his Prick than he had done by his practise”.

Distractions notwithstanding, Jonson acknowledged the scope of his scholarship in the preface to Selden’s Titles of Honour (1614): “you that have been / ever at home, yet have all countries seene / … watch’d men, manners too, / heard what past times have said, seen what ours do”.

Given his authority on the evolution of English common law, established through his Jani Anglorum Facies Altera (The Reverse or Back Face of the English Janus, 1610), History of Tithes (1618) and Jure Naturali et Gentium (Natural Law and National Law, 1640) he quickly assumed a prominent role in the struggle for sovereignty between Crown and Parliament that dominated the troubled reign of Charles I. He co-authored parliament’s Petition of Right (1628) for rule “according to the laws and statutes of this realm”. This enterprise earned him stints in the Tower (he later became keeper of its records), and the Marshalsea prison.

When the Long Parliament met in 1640, Selden again assumed a leading role in the moderate opposition to the Crown and the attempt to restore what he and his fellow common lawyers sitting in the House of Commons understood as the rightful balance between the Crown’s prerogative power and Parliament’s rights that Charles I’s arbitrary rule between 1629 and 1640 had undermined. When the King withdrew first to York and then to Oxford, where he established a parliament for his supporters in November 1642, Selden remained in London. He considered the King’s move “incendiary” and compared it to that of a man needing the use of “a little piece of wood, and he runs down into the cellar, and takes the spigot; in the meantime all the beer runs about the house”. When his friends are absent from parliament in Westminster, he averred, “the king is lost”.

The Civil War that followed dissolved the bonds of constitutional balance that Selden and the moderate party in parliament had tried by all legal recourse to maintain. As the war took its inexorable course, religious and political zealotry flourished. Selden became an increasingly isolated figure. Nevertheless, membership of the Westminster Assembly of Divines between 1643 and 1646 enabled him to draw on his knowledge of Greek and Hebrew to expose the biblical nescience of the godly party. As Aubrey again observed, he was “like a thorne” in the sides of those Puritans who sought “a Godly thorough reformation” of the church. “I doe consider the original,” Selden said, “for he was able to runne them all downe with his Greek and antiquities.”

Pride’s purge (1648) eventually removed him from the rump that remained in parliament to prosecute the King. In his Table Talk, published posthumously, he cast a jaundiced eye over the problem of allegiance, noting that:

to know the obedience is due to the Prince you must look into the contract betwixt him and his people, as if you would know what rent is due from the tenant to the landlord you must look into the lease. When the lease is broken and there is no third person to judge, then the decision is by arms. And this is the case between the Prince and the Subject.

After the trial and execution of the King, Selden dedicated his remaining years to Hebrew scholarship, publishing his multi-volume study On the Assemblies and Offices of the Ancient Jews (De Synedriis, 1655). This exegesis reflected his preoccupation with the original, biblical understanding of the relationship between religion and the civil power.

In view of the role that Selden played in shaping the early modern common-law mind, what accounts for his contemporary neglect? Moreover, given that a number of recent studies have attempted to rectify this lacuna, what new insight does Haivry’s weighty tome offer into Selden’s life and times?

Haivry observes that an interest in Edmund Burke’s political thought drew him to Selden. Haivry, like a number of scholars before him, recognised that Burke developed a view of the English constitution that profoundly influenced the evolution of modern Anglospheric conservatism. Burke considered the constitution “prescriptive”, “whose sole authority is that it has existed time out of mind”. Its ancient lineage rendered common law constitutionally authoritative. This doctrine of time, prescription and presumption, informing a contingent English inheritance, formed a bulwark against the Enlightenment enthusiasm for abstract, rationalist political models. As Burke explained in Reflections on the Revolution in France (1790), those, like Selden, who framed the Petition of Right had “inherited” their freedoms “not on abstract principles as ‘the rights of men’, but as a patrimony derived from their forefathers”. Selden was well aware of natural right and social contract theory but preferred instead “positive recorded hereditary title”.

However, the modern predilection for rationalist and ideological styles of thought, whether in a liberal, nationalist or socialist idiom, marginalised Burke’s conservative constitutionalism, rooted in a way of thought already traditional. In the twentieth century, “Old Hat”, Whig, or “Old Guard” Marxist approaches to English history, considered traditional modes of thought an irrelevant encumbrance to an evolving liberal-democratic or revolutionary history of England. The combined effect of G.M. Trevelyan, Lord Acton, R.H. Tawney and Christopher Hill rendered the conservative idiom of common law discourse, which should have been “easily visible and not at all esoteric”, collateral damage in this unfolding teleological drama.

Only when J.G.A. Pocock and Quentin Skinner began their path-finding exploration of the political languages and the historical context of early modern English political thought in the 1960s did it become possible to recover this traditional understanding freed from the prolepsis and anachronism that continues to haunt much progressive political philosophy. Pocock, who has done most to reveal the central features of the seventeenth-century common-law mind, identified it as a “language or paradigm structure”.

Yet, recovering the vocabulary in which the common law spoke was no easy task. Pocock, following Burke, identified James I’s Chief Justice of Common Pleas, Sir Edward Coke, as the “oracle” who defined the ancient constitution for seventeenth-century consumption. Although the law dated from a time beyond memory and could not therefore be considered the creation of any single individual, it was Coke, Pocock averred, who did more than any other to make it authoritative.

The common law, Coke claimed in his Institutes of the Laws of England, had always been what it was, namely immemorial. This understanding, however, left his contemporaries and later students of the law with a dilemma. Common law was the custom of the realm and constituted its “artificial reason”, practised by those educated in its cases. Yet, custom, rather than being timeless, was in constant usage, changing to address new contingencies.

This dilemma only resolves itself when we realise that both Burke and more recent historians have exaggerated Coke’s constitutional significance. The “credulous Coke”, as F.W. Maitland described him, was the exception rather than the rule for understanding the English common-law mind.

It was, instead, Selden’s commentaries that served as the crucial conduit for understanding the ancient constitution’s evolutionary continuity. Selden showed how the law’s artificial reason and custom assumed adaptability, not timeless immobility. He captured its essential character in an analogy. Contemporary legal practice might not be identical with the past, but it remained the same, just as the ship of the Argonauts, “by constant mending had no piece of the first materials … which yet is to be accounted the same still”.

Selden’s sedulous mining of the records held in the Tower of London, as Haivry demonstrates, established an evolutionary history of constitutional change. The continuity of the Celtic, Saxon and Norman codes, as that legacy continued down to the Tudor and Stuart period, evinced how the contingent British past spoke directly to the present. Rather than “antiquity (or right reason) it was continuity” that constituted “the legitimising elements of laws—for continuity over time would be the best way to reflect the particular and changing character of a political society”.

It is in this reassessment of Selden’s seminal role in the evolution of Anglo-American political and constitutionalism that Haivry’s study assumes a critical importance. Whilst recent studies consider Selden “a great scholar who added little of importance to political theory”, Haivry argues, to the contrary, that Selden’s writings outlined a general theory of man and society founded on a “traditionalist and constitutionalist contractarianism”. This traditional contract founded in the consent of particular peoples or “nations” to their historic institutions and inheritances opposed and countered the abstract philosophic contract, familiar to natural-right theorists from Hobbes to Rousseau, based on the technical consent of abstract individuals.

In defining contract in these traditional terms, Selden ran against the emerging “obsession typical of his age and indeed most modern political thought with the location and authority of political sovereignty”. Doctrines, or what Haivry terms “ideologies”, of universal natural law, natural right, and raison d’état themselves represented distinct responses to the global crisis that not only engulfed the three kingdoms of England, Ireland and Scotland but also devastated continental Europe between 1600 and 1660. The Thirty Years War (1618 to 1648) saw the gross domestic product of the Holy Roman Empire (covering most of central Europe) decline by between 25 and 40 per cent. The long war depopulated entire regions of contemporary Germany, Italy, Holland, France and Belgium.

This European political crisis was also a moral, philosophical and epistemological one. Consequently, philosophers and state counsellors from Jean Bodin in France, Hugo Grotius in the Netherlands and Alberico Gentilli in Italy to Thomas Hobbes in England developed abstract defences of absolutism and law as sovereign command. In this endeavour they received support from the growing elite enthusiasm for the reception of Roman civilian law (codex juris civilis) based on the code of Emperor Justinian as a form of universal natural law and a more rational basis for sovereignty than traditional German, Gallic or English custom. Even radical democrats, like the Levellers, who advanced the sovereignty of the English people, did so on the ground of universal natural right.

Reacting to this “universalist menace”, Selden defended “traditional national laws and identity” over an understanding of universal law or a reception of a Roman law jurisdiction and its absolutist pretensions. He fought on several fronts: justifying the evolving common law against the claims made on behalf of natural law by Grotius; natural right by Hobbes; and the divine right theories of Robert Filmer and Bishop Bossuet.

Selden articulated a theory of natural law as national law that, by definition, changed to accommodate “different times and circumstances”. He was clearly conscious of the new political language of natural law and abstract right, but interestingly confuted it through his historical recourse to ancient Hebrew custom and institutions. Selden’s interpretation of Jewish customary codes showed that the divine and natural law handed down from Noah predated those of Justinian and formed the original of all legal codes. These “Noahide” injunctions Selden reduced to the basic rule that pacta sunt servanda (contracts should be kept), and courts and judges were a divine necessity. Beyond these broad principles, however, particular historic peoples evolved their own moral and legal codes “according to particular proclivities and circumstances” thereby providing a “universal justification for all particular constitutions … and thus for the English constitution”.

Selden’s Hebraism also informed his interpretation of the vexed issue of the political status of religion. He considered the separation of church and state “a poisoned legacy”. Condemned by his Presbyterian opponents as an Erastian, Selden argued that religion should be integrated into the political process “so that it would become a beneficial moral and political power within the state”—a view consistent with his understanding of the ancient Jewish national assembly, the Sanhedrin.

Selden’s interest in the ancient Hebrew political model was by no means idiosyncratic. Cromwell, John Milton, English republicans and regicide antinomian sectaries like the Fifth Monarchists all believed the civil war had apocalyptically transformed England into a new Israel. Haivry dismisses Cromwell’s Protectorate as a “dictatorship”, yet, in 1653, Cromwell summoned a nominated parliament on the model of the Jewish Sanhedrin and oversaw the official re-admission of Jews to England in 1656.

Selden shared little else in common with English republicans. Like an earlier English political theologian, Bishop Richard Hooker, whose views on the governance of an ecclesiastical polity he shared, Selden elaborated a political model which combined traditional components of mixed and balanced government with a role for an integrated church as an essential estate of the realm.

Selden, as Haivry elaborates in considerable detail, consistently opposed the abstract, rationalist, intellectual fashion of the period. In particular, his insight into the evolutionary and adaptable character of national law led him to an original understanding of liberty quite distinct from the “highly unusual” absolutist, natural right and social contract theorists that tend to dominate accounts of early modern political debate and run “the relay race of political thought as it is still widely taught—Hobbes handing the baton on to Locke and so on”.

Selden’s conservative “probabilism” contrasted with what Haivry terms, somewhat anachronistically, the “ideological character” of intellectual and political conflict. In fact, Selden’s eirenic quest for reconciliation and balance reflected the predominantly casuist or case-based approach to conscience, law, argument and debate that appealed to moderates on both sides of the civil war divide.

The rationalist or ideological style eventually dominated modern political thinking. Nevertheless Selden’s probabilist casuistry that emphasised the particular and the prudent remained a neglected but enduring feature of Anglo-American constitutionalism. As Haivry and Yoram Hazony, his colleague at the Herzl Institute, argue, the tendency to elide Selden and Burke’s prudent constitutionalism into a later liberal, rationalist episteme of Lockean provenance has, over time, obscured this distinctive conservative disposition. Yet, in framing the Declaration of Independence, George Washington, Alexander Hamilton and John Dickson still spoke in the authentic language of the common law in opposing the abstract principles of Thomas Paine and Jeffersonian Democrats.

Meanwhile, in England, Selden’s idea of balance profoundly affected the constitutional settlements of 1660 and 1688 and influenced the evolution of common-law thinking from Matthew Hale to William Blackstone and Edmund Burke. In 1887 another neglected commentator on the history of the English constitution, F.W. Maitland, formed the Selden Society to continue this legacy. As Maitland observed, England “narrowly escaped” the reception of abstract, absolutist Roman law that swept through early modern Europe. By the late nineteenth century, as national law reasserted itself, especially in Germany, “few writers had a hearty good word for the Reception”.

After the Second World War, however, abstract, universal, legal “cosmopolitanism” made a comeback in the guise of international law, human rights and the European Court of Justice. Ironically, members of parliament after 1972, many of them common lawyers, betrayed Selden’s legacy for the ever-closer European Union’s version of a universal, Roman law reception.

After the Cold War, liberalism, international law and abstract “human” rights progressively reduced the contingent Anglo-American practice of constitutional liberty to a pastiche of liberal themes negating the distinctive conservative voice that is neither authoritarian nor liberal. The current confusion of conservative values with progressive liberalism on the Left or authoritarianism on the Right “can only do harm”. Selden’s motto was “liberty above all things”. Haivry’s attempt to recover Selden’s original voice offers an important resource for reviving and recovering the political language of conservatism.

Associate Professor David Martin Jones is Reader in Political Science at the University of Queensland