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’.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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.
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.
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.
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.
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.
CD 1628, ii. 525-7, 538; Lords Procs. 1628, v. 291, 300.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.