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The Cambridge History of English and American Literature in 18 Volumes (1907–21).
Volume VIII. The Age of Dryden.

XIII. Legal Literature

§ 23. Chief Political and Religious Topics

The distinctive characteristics of Selden’s deliverances at his hospitable board are of a different, and, perhaps, of a higher, order. We have described them as deliverances rather than conversations; the truth being that, in these communings, the speaker, quite consciously, lays down the law, while it is only here and there that room is found for objections offered by interlocutors or, more probably, suggested by the autocrat of the table himself, and, in any case, always supplied with a satisfactory answer. These deliverances reveal to us the rapid working of a powerful intellect, putting forth, without any effort of full exposition or sustained argument, but with perfect frankness and freedom of expression, opinions on subjects with which, however difficult or abstruse they may at times seem, it is invariably found to be at home. To occasional discourse of this sort, Selden, in the first instance, brought an equipment of immense learning in law and legal history, together with the habit, which he indulged even in his writings on legal history, of illustrating his discourse from non-legal, as well as legal, sources. It must, however, be allowed that the reporting powers of Milward (who was not a lawyer)—and, perhaps, his powers of memory—were but limited; for Table-Talk not only contains few if any “quotations from poetical writings in various languages” such as “embellish many of” Selden’s written “pages,” but it displays little interest in literature; indeed, the section on “Poetry” (CV) is not so much disappointing as flatly paradoxical. However cautiously Selden, even among trusty friends, may have abstained from an application of his analytical powers to “burning” questions of the day, it is clear that, in his later years, his intellectual interests came more and more to concentrate themselves upon matters of state and church. On the former head, he was steadily and sturdily opposed to any encroachment upon popular rights, when those rights had once found expression in the existing law, and he disliked change in the institutions, popular or other, whose growth had been a legal process. The long-lived theory which, about the time of the publication of Table-Talk, was to assume control over the political philosophy of a series of generations—the conception of a contract between governor and governed—pervaded Selden’s views as to the political conflict of which he had witnessed the development. At the bottom of all political doubts and disputes lay to his mind the question: “Have you agreed so? If you have, then it must remain till you have altered it.” A clear consequence was that a breach of the contract on the one side justified resistance on the other:

To know what obedience is due to the prince, you must look into the contract betwixt him and his people.… Where the contract 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.

Hence, Selden’s advocacy of the right of resistance, and his opposition to conceptions, like those of Hobbes, which upheld the duty of passive obedience on the part of the subjects to the monarch. In its very bases, his system of political thought is irreconcilable with the excesses against law that had been the real beginnings of the English revolution. Without mentioning names, he points at the “incendiaries of the state,” who first set it on fire by swerving from the path of legality, and, in order to provide the sovereign with money, “outran the constable.” But, though he reverences an act of parliament as law, he is without any superstitious reverence for parliament itself as an acting machine of government; and no censure of an omnipotent chamber could be more severe than that which he passes on the action of “the parliament party,” though he does not make any pretence of questioning the authority of the assembly under its control.

On religious subjects, Selden delivered himself with more expansiveness. It must be allowed that, like many of his contemporaries, he found it difficult to speak of the clergy, even of his own church, without an impatience not far removed from dislike. This prejudice, as he freely confesses, was a remnant of times when it was not easy to find a “parson” who was a “gentleman” by birth and breeding. But, of course, Selden’s antipathy went deeper than this. Though an advocate, in his own way, of “set forms,” what irritated him in the clergy was the mixture which they presented of religious form and worldly motive—“every religion,” he could bring himself to say, “is a getting religion.” Yet, morality and religion, to his mind, were inseparable, nor could the former stand without the latter. Selden also disliked the clergy because of the incompleteness of their intellectual equipment; theology was a study to which, from this point of view also, he had given much thought, and he says—in words of which the humour may have been heightened by the delivery: “There is all the reason you should believe your minister, unless you have studied divinity as well as he or more than he.” At the same time, he could be just to the position of English churchmen, at a time when it was denounced as illogical and hypocritical, and, on historical grounds, could defend both them and the bishops against unfounded charges. The jus divinum claim for presbyteries, as has been seen, he derided. But his protestantism was out-spoken and deep-rooted, and one of the most incisive things in these discourses is the little dialogue on the foundations of the contending forms of faith. His attitude towards the Bible may be described as frankly Erasmian; and, in general, his religious standpoint is an enlightened acceptance of the creed and church of his fathers, equally removed from fanaticism and from faithlessness.