No More Learning

preface to Coke's 9th and 10th reports, Maitland's Introduction to the Selden Society's
edition of The Mirror, and Holdsworth's Hist. Eng. Law, vol. II, pp. 284–290.
2 In 1895 thöre were over 1800 volumes. Pollock, First Book of Jurisprudence,
p. 308.
Pollock and Maitland, History of English Law, vol. I, p. XXXV.
• This is particularly true of the Year Books for 40–50 Edward III, known to
lawyers as Quadragesms.
• See Holdsworth’s Hist. of Eng. Law, vol. 11, pp. 441-462, where an admirable
account of the Year Books is given.


## p. 314 (#336) ############################################

314
Legal Literature
of both Britons and Americans are conditioned to this very day.
To the historian, they supply first-hand sources for the social life
of the later middle ages. To the philologer, they furnish rich
mines of information (as yet little worked) concerning a remarkable
and originally uncorrupted French dialect. As the number of the
Year Books increased, it became convenient to make classified
abridgments of their leading cases. The first of these was made,
about 1470, by Nicholas Statham, baron of the exchequer under
Edward IV.
The same reign saw two other notable additions to legal
literature, viz. Sir John Fortescue’s De Laudibus Legum Angliae,
and Sir Thomas Littleton's Tenures. Fortescue's well known work
was written (c. 1470) in France, where the author was living in
exile with the Lancastrian court. It was written to instruct the
young prince Edward in the laws which, it was hoped, he would one
day be called to administer. In form, it is a dialogue between the
prince and the author ; its language is Latin? Having been
composed for the edification of a non-legal person, it is full of
information-commonplace then, but extraordinarily valuable
today-concerning the legal profession, the training of lawyers,
the constitution of the inns of court and the elements of juris-
prudence. Throughout, it praises and magnifies English common
law, pointing out in detail its superiority to Roman civil law.
It was for this quality that Sir Edward Coke extolled it as
' worthy of being written in letters of gold. ' The same enthu-
siastic common lawyer used even larger terms of appreciation in
respect of Littleton's Tenures. He described it as the most
perfect and absolute work that was ever written in any human
science. Yet it is a wholly different sort of book from that of
Fortescue. It is a highly technical work on feudal land law
intended for the professional student and practitioner. But it so
well sums up the development of what had then become the most
important branch of medieval common law, it is so lucid and well
arranged, its language—the law French of the period—is so forceful
and well chosen, that it has deservedly attained the rank of a classic.
It was written shortly after 1475, and Littleton himself is supposed
to have been in the act of seeing it put into print by Lettou and
Machlinia when he was overtaken by death in 1481. It was the first
English law book to pass through the newly invented press ; and
so popular did it become that when, in 1628, Coke published his
6
a
1 Cf. vol. 11, pp. 296—9 as to this and other writings by Fortescue.


## p. 315 (#337) ############################################

Early Printed Law Books
315
commentary upon it, it had already appeared in more than seventy
editions.
The advent of the printing press effected a great, though silent,
revolution in law, as it did in every department of learning. It
widely disseminated legal knowledge ; it greatly facilitated the
standardising of justice throughout the country; it provided
politicians with an armoury of those juristic weapons with which
they fought the battle of English liberty in the seventeenth
century. The first hundred years, however, of the era of the
printing press did not witness the production and publication of
ány new work in English legal literature to be compared in merit
or importance with either Fortescue or Littleton. Lawyers seemed
to be content if they received from the press a steady supply of
old authorities-registers of writs, books of entries, year books,
abridgments, statutes and court keepers' guides.
This literary sterility may have been due to the fact that
English common law was out of favour in high places. The Tudors
leaned towards courts like the Star chamber, in which not common
law but something very different was administered. English
common law, indeed, was during the first half of the sixteenth
century, in almost as grave danger of losing its supremacy as
was the English parliament. It was saved, however, by the inns
of court, and by the weapons which the printing press put into the
hands of these organised champions of precedent.
Of the new works which issued from the press during this
century perhaps the most important-or least unimportant-was
Saint German's Doctor and Student (1523–30), a dialogue
between a doctor of the civil and canon law and a student of
the common law, composed with the main object of contrasting
the relations between equity and common law, but incidentally
affording a good introduction to the principles of both. It passed
through twenty-two editions before, in the eighteenth century, it
was superseded by Blackstone's Commentaries. Mention should
also be made of Perkins's Profitable Book (1532), a treatise on
conveyancing, 'acceptable and preciouse to young students'; of
two Abridgments of the Year Books, prepared, the one by
Sir Anthony Fitzherbert (1516), the other by Sir Robert Brooke
(1568); and of Lambarde's Eirenarcha (1581), a manual for
justices of the peace, written in a style which, says a contemporary,
‘runneth like a temperat stream. The same writer's Archeion
(1591) and Archaionomia (1568) are valuable, the one as showing
the Tudor view of the relation between the common law courts


## p. 316 (#338) ############################################

316
Legal Literature
and their various rivals, the other as a treatise on legal antiquities.
Gentili's De Jure Belli (1588—9) was a pioneer work in inter-
national law, to which, a generation later, Grotius was much
indebted in the compilation of his more famous book with a
similar title. Finally, we note three great collections of Law
Reports, the successors of the Year Books, and, like the Year
Books, in French, namely, those of Plowden (1571), Dyer (1585)
and Coke (1600).
With the name of the notable lawyer and politician Sir Edward
Coke, we enter the seventeenth century. We may divide that
century for the purpose of study into three periode : the first, that
of the struggle between king and parliament; the second, that of
the commonwealth; the third, that of the restoration and revo-
lution. It will be seen that this classification corresponds to the
main political division of the Stewart era. This is as it should be ;
for never were law and politics more closely bound together than
they were at this time. When James I came to the throne, the
great unsettled constitutional question was whether the country
should be governed by rex or lex. On the side of the royal pre-
rogative ranged themselves generally the equity lawyers and the
civilians ; over against them were the common lawyers led by
Coke. Foremost among equity lawyers was Coke's life-long rival
and personal enemy, Francis Bacon (lord chancellor 1618–21).
But Bacon’s fame rests rather on his philosophical achievements
than on his legal writings. It is true that it cannot be said of him,
as it was said later of lord Brougham, that, if only he had known a
little law, he would have been omniscient; for he knew a good deal
of law, although he still remained fallible. He was, indeed, eager
to attain legal celebrity.
'I am in good hope,' he wrote, that when Sir Edward Coke's reports and
my rules and decisions shall come to posterity, there will be-whatsoever is
now thought-question who be the greater lawyer. '
But he dissipated his energies ; he did not carry out his great
project, that of making a complete digest of the laws of England”;
and he died leaving legal writings of no greater bulk than admits
of their inclusion in a single volume of his collected works. Of
these writings, the most important, apart from several arguments
in important cases, are the tracts entitled Maxims of the Law,
and A Reading on the Statute of Uses. The former contains
materials collected for the never completed digest; while the
1 For Bacon's view as to the need of a revision and digest of the law of England,
see the aphorisms appended to his treatise De Augmentis Scientiarum.


## p. 317 (#339) ############################################

Bacon. Cowell. Coke 317
6
latter discusses, with remarkable subtlety and philosophic insight,
a highly technical department of equitable jurisdiction. Bacon's
scanty legal writings kept fairly clear of political controversy.
Such, however, was not the case with the works of his contem-
porary, the civilian John Cowell, regius professor at Cambridge.
In 1605, he published his Institutiones Juris Anglicani ad
Methodum Institutionum Justiniani Compositae et Digestae,
an attempt to codify English law under Roman rubrics ; in
1607, he issued his more famous Interpreter, a dictionary of law
terms, in which, under such words as 'king,' 'parliament,' 'pre-
rogative,''subsidy,' he maintained the theory of absolute monarchy.
The champions of common law took alarm, caused Cowell to be
reprimanded by the council, and his book to be burned by the
hangman. Other notable civilians of the period who were to be
found on the same political side were Sir Arthur Duck and Richard
Zouche, both of them men whose writings on Roman law gave
them European note. On the other side was the formidable
Sir Edward Coke (chief justice of the king's bench 1613—16), a
host in himself. He produced many legal books; but his fame, as
a writer, rests fundamentally upon two, namely, his Reports and
his Institutes. In his political zeal he was not always scrupulous
as to historical accuracy. To him was largely due the legend of
Magna Carta, the acceptance of The Mirror of Justices as a
serious legal authority, the fiction of the official nature of the
early Year Books, and many imaginary rules of law. "I am
afraid,' said chief justice Best, 'we should get rid of a good deal of
what is considered law in Westminster Hall, if what Lord Coke
says without authority is not law. ' Nevertheless, he did a great
and useful work for English law, and, therefore, for England. In
his Reports (eleven volumes, 1600—15), which are models of terse
and vigorous expression, a highly authoritative and almost com-
plete statement of contemporary common law is given. In his
Institutes (four volumes, 1628—44), a mass of antique learning is
brought to bear upon the explanation and defence of the English
legal system? Coke's title to fame is that he adapted the
medieval rules of common law to the needs of the modern state,
and recast these rules in an intelligible form, collecting and
condensing the obscure and chaotic dicta of the Year Books and
1 The contents of the four volumes of Coke's Institutes are as follows: vol. 1,
Littleton's Tenures; vol. 11, Magna Carta, and subsequent statutes; vol. Ini, Criminal
Law; vol. iv, Jurisdiction of Courts. As to the style, G. P. Macdonell remarks
(Dict. Nat. Biog. ), 'He often reaches & perfection of form, exhibiting that freedom
from flabbiness and that careful use of terms which is essential to a good legal style. '


## p. 318 (#340) ############################################

318
Legal Literature
a
the abridgments. But, in political cases, his learning is always
to be looked upon with suspicion or, at least, with caution. His
search for truth was merely monocular. He kept one eye steadily
fixed on the interests of his party. There was, however, living at
the same time a group of men who were whole-heartedly devoted
to research, men who are rightly called the fathers of the scientific
study of legal history. Foremost among them was John Selden-
but with him should be remembered Camden, Cotton, Spelman and
Dugdale.
Selden was admittedly the most erudite Englishman of his day.
To a wide classical scholarship he added a remarkable knowledge,
based, largely, upon original research, of archaeology, history,
philology and legal antiquities. He was endowed, moreover, with
a mind free from prejudice, a well balanced judgment, a calm
judicial temperament. “I sought only truth,' he said in one of his
'
works, and the expression might well be applied as a motto to
them all. In 1610, before he was called to the bar, he published a
discourse on the laws and customs of the Britons, English and
Danes under the title Jani Anglorum Facies Altera. In 1616, he
issued an annotated edition of Fortescue. Two years later, he
wrote—though for diplomatic reasons it lay unpublished till 1636–
his treatise Mare Clausum, an attempt to vindicate, on the basis
of international law, England's claim to sovereignty over the
narrow seas against the destructive attack which Grotius had
made upon it in his Mare Liberum. Finally, in 1647, he gave to
the world his edition of Fleta, and, in a prefatory dissertation,
condensed the results of a lifelong study of the origins of English
law. By his work, he established that tradition of scholarly
research into legal antiquities which, at the present day, is
maintained by the society called by his name?
When Selden's Fleta was published, the tragedy of Charles I's
career was drawing to its close. Two years later, it was finished,
and the commonwealth was established. During the period of this
rule, when all institutions were in the melting-pot, few matters
received more anxious consideration than did the laws of England.
There was, indeed, abundant need of reform. The delays of
litigation were proverbial; the expenses of the courts were
inordinately heavy, legal procedure was a maze of technicalities
amidst which justice frequently lost itself. Everywhere was felt
1 See Selden as Legal Historian, by Hazeltine, H. , D. , in Brunner's Festschrift
(Weimar, 1910), and, also, in Harvard Law Review, 1910. As to Selden's Table Talk,
see below (u).


## p. 319 (#341) ############################################

English as the Language of the Law 319
the pressure of the dead hand of the Middle Ages. On 22 October
1650, a committee was appointed to consider the matter of legal
reform, and, three days later, parliament resolved that one thing,
at any rate, should be done-English should be made the language
of the law. A bill was accordingly brought in and passed on
22 November 1650. Till then, Latin had remained the language
of the records, and French the language of pleadings in court.
But, in the seventeenth century, what Latin and what French !
This is no place to enter into the subject, great as is its literary
interest, and it must suffice to mention, as a specimen of the Latin,
the indictment of a man in the Savoy, quia tetheravit vaccam
apud watermill, and, as a specimen of the French, the report of
an incident at the Salisbury assizes in 1631, when chief justice
Richardson fuit assault per prisoner la condemne pur felony
que puis son condemnation ject un brickbat a le dit Justice que
narrowly mist'. The resolution of the House that these jargons
should cease led to a good deal of activity in translation. But,
apart from this desirable concession to commonsense in the matter
of language, very little was accomplished. When discussion turned
to questions of substantial reform, the would-be reformers could
not agree. Hugh Peters, for instance, would have liked to intro-
duce the laws of Holland, while John Rogers would have preferred
the Mosaic code : The body of laws,' he said, 'lies ready before
you in the Word of God. ' In vain did Matthew Hale, one of the
ablest of English lawyers, in conjunction with a select committee,
draft not less than nineteen bills embodying practicable improve-
ments. Not one was carried into effect, and, before long, the
establishment in the country of a military despotism, with the
enforcement of martial law, threw into the background the whole
problem of legal reform. Apart, then, from translations, there
are few works in legal literature to chronicle during the common-
wealth period. The most important were numerous volumes of
Reports—very poor in quality—mainly of cases of the reigns
of James I and Charles I; Matthew Hale's London's Liberties
(1650); Thomas Hobbes's Elements of Law (1640); and, finally,
William Prynne's Collection of Fundamental Liberties and Laws
(1654–5).
The restoration of 1660 heralded a notable revival of the
common law, and with it came back its old languages, Latin
and French, which it was not able wholly to discard till near
the middle of the eighteenth century. One of the signs of this
1 See, more fully, Pollock, First Book of Jurisprudence, p. 295.
6


## p. 320 (#342) ############################################

320
Legal Literature
revival was the publication, in 1668, of a new Abridgment des
plusiers Cases et Resolutions del Commun Ley. It was the work
of Henry Rolle, once chief justice of the king's bench and a friend
of Selden. Its compiler had died in 1656, and it fell to Sir Matthew
Hale to see it through the press. Hale himself was a voluminous
writer on legal themes; but he seemed to have little desire for the
renown of authorship. His valuable introduction to Rolle is
anonymous, and the bulk of his writings were still in manuscript
at the time of his death (1676); indeed, a good deal remains even
now unpublished, stored in the libraries of the British Museum
and Lincoln's inn. His most notable works were his fragmentary
History of the Common Law of England (printed 1713), and his
Historia Placitorum Coronae (printed 1739). Both these books
deal, to some extent, with legal antiquities. A much more
thorough survey, however, of the field of early law and the insti-
tutions connected with it was made by Sir William Dugdale in his
Origines Juridicales (1666). This valuable work was all but lost
to the world ; for the whole of the first edition perished in the fire
of London. Fortunately, however, a few presentation copies had
been sent out beforehand, and, from these, a second edition was
prepared The zeal for the study of antiquity may, in some
measure, account for the issue of a collected edition of the Year
Books in 1679—the largest edition of the Year Books that has yet
appeared, and still the standard edition. But this was more than
an enterprise of antiquarian zeal, for the Year Books were still in
constant demand on the part of practising lawyers, and many of
the volumes had attained to scarcity prices. The old law, in fact,
had come back in force at the restoration. But it did not remain
without its critics and assailants. Prominent among these was
the irreconcilable William Prynne. We read in Pepys's diary
(25 April 1666): ‘Mr. Prin. . . did discourse with me a good while
in the garden about the laws of England, telling me the main
faults in them. ' In 1669, Prynne published his Animadversions
on the Fourth Part of Coke’s Institutes; and these, perhaps,
include some of the remarks which their author made to Pepys in
the garden. A much more formidable critic, however, both of
Coke and of the laws of England, was Thomas Hobbes. "Truly,'
he said, “I never read weaker reasoning in any author on the law
of England than in Sir Edward Coke's Institutes. ' In his Dialogue
between a Philosopher and a Student of the Common Laws (pub-
lished posthumously in 1681) he assails with vigorous dialectic the
fundamental legal and political principles inherent in the works of
6


## p. 321 (#343) ############################################

Selden's Table-Talk
321
Coke and the other opponents of the Stewart autocracy. But
the mention of Hobbes confronts us with a new age, and
warns us that we have reached our time limit. Though an
Elizabethan by birth, he is in outlook very modern. As a writer
on law, indeed, he has not even yet come by his own. His ideas,
couched in severe and exact terminology, have not, it is true,
directly reached the popular mind. But, indirectly, through the
works of other men, they have made their sovereign entry, and
they hold a commanding place in present day legal theory. They
ushered in the era of Blackstone, Bentham and Austin.
II
To the preceding summary of the progress of English legal
literature, through the great days of Bacon and Coke, to those
of Hale and Selden, may be added a few words concerning a
publication which has served to keep the last of these famous
names green in popular remembrance, and which, so far as English
books are concerned, stands virtually by itself in the century of
its origin. Table-Talk: being the Discourses of John Selden,
Esq. Being His Sense of various Matters of Weight and high
Consequence ; relating especially to Religion and State was first
published in 1689, thirty-five years after Selden's death, and nine
years after that of his sometime amanuensis, Richard Milward
(afterwards rector of Great Braxted and canon of Windsor). Milward
was responsible for the collection and digestion of the utterances
which compose the little book. Its title and general plan were
manifestly taken from what is, perhaps, the most famous of all
anthologies of this particular sort—the Tischreden of Martin
Luther, otherwise called his Colloquia, which were first edited,
in 1566, by John Aurifaber from the remembrance of himself and
others. Here, too, the discourses' are arranged according to
subject rather than chronologically, and, as in Milward's alpha-
betical disposition, the series of sayings is thus deprived of not
a little of its biographical interest and significance? Yet the
reporter of Selden's Table-Talk chooses, as the motto of his col-
lection, the words Distingue tempora! In the latter part of the
sixteenth, and during the course of the seventeenth century, were
put forth not a few collections of the sayings or conversations of
eminent French scholars, from the redoubtable younger Scaliger
down to Gilles Ménage, renowned alike as a not very laborious
1 Cf. Köstlin, J. , Martin Luther, sein Leben und seine Schriften, 3rd ed. Elberfeld,
1883, vol. II, pp. 487 ff.
21
6
E. L. VIII,
CH. XIII.


## p. 322 (#344) ############################################

322
Legal Literature
lexicographer and as a devotee to the pleasures of the great
world! In England, on the other hand, the era proper of ana had
not yet been reached, although collections of the sayings of kings
and magnates had become popular from the middle of the seven-
teenth century onwards? , and although great wits and profound
scholars of the succeeding generations continued to unbend in
occasional converse in coffee-house or common-room, as they had
indulged their humour at the Mermaid in the days of Ben Jonson
and of Selden himself, or as Jonson had (if the phrase be per-
mitted) let himself go in his harangues-called Conversations-
addressed to Drummond at Hawthornden. The golden era of
this species was inaugurated by Boswell's Life of Johnson; but
Johnson himself, whose conversations, like Martin Luther's collo-
quies, cover a far wider ground and possess a far wider, as well as
more intimately human, interest than can be ascribed to Selden's
Table-Talk, pronounced this English collection superior to any
of its French rivals:.
Unfortunately, the original manuscript of Table-Talk is lost, so
that some passages of the printed texts are of composite origin or
actuallyuncertain; but the authenticity of the whole may be regarded
as established, notwithstanding the cavils of Wilkins, the editor of
Selden's Works (1726). The period during which Milward stated
that he had collected his materials from the lips of his patron ex-
tended over twenty years—clearly the last two decades of Selden's
life, for, in the section Tithes, Selden speaks of himself as having
written his History of Tythes (published in 1618) "about forty
years ago. ' Milward neither says nor implies that his manuscript
was in any way revised or approved by Selden.
There is not any
need, it may be added, for calling in the evidence of style in order
to determine the date of the utterances recorded in Table-Talk.
Aubrey, no doubt, refers to Selden's writings when stating that
he quite left off the obscurity which he affected in his younger
years; and Clarendon, whose character of Selden is one of the
earliest, as it is one of the most generous, tributes of friendship
enshrined in the Life of the great historian“, while noting that
1 For a list of these French ana see preface to The Table-Talk of John Selden, ed.
Irving, David, Edinburgh, 1854, pp. xxii-XXV.
2 See for some earlier English collections of ana, bibliography to the present
section.
8 See Boswell's Life of Johnson, ed. Hill, G. B. , vol. v, p. 311. Boswell, when, in
self-defence, discussing publications of a kind similar to his own, also mentions
Spence's Anecdotes, which, however, is rather different in scheme and remained in
manuscript till 1820.
• Vol. I, p. 35, ed. 1827.


## p. 323 (#345) ############################################

Topics and Characteristics of Table-Talk 323
his friend's style, in all his writings, seemed 'harsh and sometimes
obscure,' was careful to add that 'in his conversation he was the
most clear discourser, and had the best faculty of making hard
things easy, and of presenting them to the understanding, of any
man that hath been known. ' The essential qualities, and the
supreme merit, of the style of Table-Talk could not have been
more admirably summarised, though Clarendon's intimacy with
Selden must have dated from about seven years before that (1642)
which saw it end with the great lawyer's definitive resolution to
cast in his lot with the parliament rather than with the king.
On the whole, the references in Table-Talk to the political
events and transactions in which Selden had borne part, even
before he became a member of Charles I's second parliament in
1626, are but few. It is only incidentally that he mentions either
'the imprisoning of the parliament men,' of whom he was one,
'3° Caroli",' or any of the proceedings of the Long parliament
(except the removal of bishops 'out of the house? '). He is less
reticent concerning the doings of the Westminster assembly of
divines, of which, in common with other parliament men, he was
chosen a member, and in whose debates Whitelock states him to
have taken active part, at times 'totally silencing' some of the
divines by comparing their biblical quotations with the original
Greek and Hebrew texts. But the times were manifestly not such
as to invite individual comment on the action of public bodies;
for, during practically the whole of the period which can be sup-
posed to be covered by Table-Talk, peace seemed as far off as
ever, and, 'though we had peace, yet 'twill be a great while ere
things be settled; though the wind lie, yet after a storm the sea
will work a while4. ' Thus, 'the wisest way for men in these times
is to say nothing. ' Personal references or allusions, such as light
up the hearthside or tavern talk of Luther or Johnson, are, there-
fore, scanty in Selden's observations-save for a few seasonable
illustrations from the sayings of king James, or references to
eccentrics like Sir Kenelm Digby or Sir Robert Cotton.
The distinctive characteristics of Selden's deliverances at his
1
9
* See 'LX. Incendiaries. '
See . VII. Bishops in the Parliament. '
8 Memorials, p. 71, cited by Reynolds, 8. H. , in the introduction to his edition of
Table-Talk, p. xviii. In CXV. Presbytery,' Selden speaks with some satisfaction of
the suspicious delay of the divines in the assembly in answering the queries of parlia-
ment as to the proofs of the presbytery's possession of the jus divinum. • Their
delaying to answer makes us think there's no such thing there. "
• See O. Peace. '
6 Ibid.
21-2


## p. 324 (#346) ############################################

324
Legal Literature
6
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 con-
sciously, 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 his-
tory, 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 longlived
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
. Cf. Hazeltine, H. D. , Selden as Legal Historian, p. 599.
2 Ibid.
8 The Crashaw whom Selden states he converted from writing against plays, was,
of course, William Crashaw, the puritan preacher and poet and not (as one of the
editors of Table-Talk has assumed) his more celebrated son. Selden entertained &
strong feeling against · lecturers,' as being another sort of friars (see LXXXIX.
Lecturers'); and it was in the former capacity that the elder Crashaw seems to have
began his ministrations.
>


## p. 325 (#347) ############################################

Selden on Politics and Religion 325
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 con-
tract 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 2.
Hence, Selden's advocacy of the right of resistance, and his oppo-
sition 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 constable4. ' But, though he reverences
an act of parliament as law, he is without any superstitious
reverence for parliament itself as an acting machine of govern-
ment; 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 controle.
On religious subjects, Selden delivered himself with more ex-
pansiveness. It must be allowed that, like many of his contem-
poraries, 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,
6
>
6
<
ICII. People.
3CXLVII. War. ' See, also, *XXVIII. Contraots,' where, however, there is a
touch of irony in the concluding epitome. '
3 'LX. Incendiaries. '
4 'LXXXIX. Money. '
O'XCVII. Parliament. ' This section concludes with a very seasonable protest
against pressure of any sort for the purpose of carrying a vote in parliament, winding
up with the odd assertion that a man is sent there, not to persuade others, but 'to
speak his own heart. ' Selden was suspicious of rhetoric, and, though he could not
rule its power out of court, declared that it is either very good, or stark naught'
(CX. Preaching').
& See ·XOVII. Parliament. '
? See `LXXXVIII. Minister Divine. '
8 See the rather paradoxical, but extremely interesting, CIX. Prayer. '
6


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326
Legal Literature
5
1
what irritated him in the clergy was the mixture which they pre-
sented 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 thoughts, 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 de-
nounced 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 de-
rided. But his protestantism was outspoken and deeprooted,
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 Erasmianº;
and, in general, bis religious standpoint is an enlightened accept-
ance of the creed and church of his fathers, equally removed from
fanaticism and from faithlessness.
The real fascination of Selden's utterances in Table-Talk lies
neither in the legal learning of which it furnishes constant evidence,
nor in the historical judgments which it pithily supplies or, by
means of a pregnant word or phrase, suggests, nor, again, in its
incidental illustrations of contemporary currents of opinion or
tendencies of feeling. Its charm lies in the play of mind, which,
passing from subject to subject, familiar to the speaker in its
depths as well as in its more superficial aspects, illuminates them
all in turn. Selden's wit has many varieties, and more than one
of these, half imperceptibly, reveals itself as true wisdom. By the
side of some instances of a coarse kind of wit, which still found
ready acceptance in Selden's age—especially in the form of
anecdotal illustrations, with which he evidently took pleasure in
6
i See CXVIII. Proverbs. '
See XC. Moral Honesty. '
3 See 'LXXXVIII. Minister Divine. '
* See CVII. Popery. '
• See . VI. Bishop before the Parliament. ' 6 See •CXV. Presbytery. '
? See CXXI. Religion. '
8 See ·V. Bible, Scripture. '
• Such as the rather sophistical •CL. Witches. ' It is amusing that even Selden
should not have escaped the impression common with elderly people that manners are
deteriorating, though he can hardly have been an old man when he gave utterance to
*LXXI. King of England. '


## p. 327 (#349) ############################################

Selden's Wit and Wisdom
327
clinching an argument—there are others of a trenchant wit, too
rough in flavour to suit the modern palate, and others, but not so
many, of a cynicism which tends, hardly less than coarseness, to
mar table-talk. But there are others of a pleasant wit betokening
a genial apprehension of the humorous side of things, besides
yet others where the speaker manifests that kind of insight
into the real nature of men and affairs which only the constant
application of the mind to prompt treatment of intricate problems
is capable of producing? . Finally, there are to be found in Table
Talk illustrations of that highest kind of wit which, by a winged
word, makes plain an everlasting truth-that gnomic wisdom
which is as pellucid as it is profound. Here, humility and per-
spicacity join hands, as in the plain moral which ends a homely
argument on Vows:: 'He that vows can mean no more in sense
than this; to do his utmost endeavour to keep his vow. '
Thus, a simple sheaf of sayings apprises us, were there nothing
else to show it, how, for this great lawyer and deeply read scholar,
the light of reason shone with the same clearness, calm rather than
cold, whether it fell upon the ancient tomes in his library, or lit up
the chambers of political or religious debate, or burnt in the lamp
hanging in the sanctuary.
2
1 A single instance may be cited from 'LXXXVI. Measure of things. ' Wo cry
down a rotten pear, and approve e rotten medlar; 'and yet, I warrant you, the pear
thinks as well of itself as the medlar does. '
2 By way of example, see the explanation of the custom of painting terrific
Saracens' heads as signs on inns in . CXLVIII. War. '
8 CXLIV.


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CHAPTER XIV
JOHN LOCKE
JOHN LOCKE may be regarded as, on the whole, the most
important figure in English philosophy. Others excelled him in
genius ; he had not the comprehensive grasp of Hobbes, or the
speculative originality of Berkeley, or the subtlety of Hume; but
he was surpassed by none in candour, sagacity and shrewdness.
These qualities recommended him to his countrymen, and the
width of his interests reconciled them to his philosophy. He was
a physician, always on the outlook for new knowledge, an adviser
of statesmen, a sufferer in the cause of freedom and an amateur
theologian. His writings on economics, on politics and on religion
expressed the best ideas of the time—the ideas that were about
to become dominant. He was the philosopher of the revolution
settlement; and, when the settlement was made, he came home to
publish the books which he had prepared in exile. Even his great
work, An Essay concerning Human Understanding, may have
seemed only to show the grounds in the human mind for the
lessons of honesty, liberty and toleration which he constantly
inculcated. It is almost with a shock of surprise that one realises
that this same Essay, by its historical plain method,' gave a new
direction to European philosophy, and provided a new basis for
the science of psychology.
Locke was born at Wrington, a village in Somersetshire, on
29 August 1632. He was the son of a country solicitor and small
landowner who, when the civil war broke out, served as a captain
of horse in the parliamentary army. 'I no sooner perceived
myself in the world than I found myself in a storm,' he wrote
long afterwards, during the lull in the storm which followed
the king's return. But political unrest does not seem to have
seriously disturbed the course of his education. He entered
Westminster school in 1646, and passed to Christ Church, Oxford,
as a junior student, in 1652; and he had a home there (though
absent from it for long periods) for more than thirty years—till
a


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Locke and Shaftesbury 329
deprived of his studentship by royal mandate in 1684. The
official studies of the university were uncongenial to him; he
would have preferred to have learned philosophy from Descartes
instead of from Aristotle; but, evidently, he satisfied the au-
thorities, for he was elected to a senior studentship in 1659, and,
in the three or four years following, he took part in the tutorial
work of the college. At one time, he seems to have thought of
the clerical profession as a possible career; but he declined an
offer of preferment in 1666, and, in the same year, obtained a
dispensation which enabled him to hold his studentship without
taking orders. About the same time, we hear of his interest in
experimental science, and he was elected a fellow of the Royal
Society in 1668. Little is known of his early medical studies.
He cannot have followed the regular course, for he was unable
to obtain the degree of doctor of medicine. It was not till 1674
that he graduated as bachelor of medicine. In the following
January, his position in Christ Church was regularised by his
appointment to one of the two medical studentships of the college.
His knowledge of medicine and occasional practice of the art
led, in 1666, to an acquaintance with lord Ashley (afterwards,
from 1672, earl of Shaftesbury). The acquaintance, begun ac-
cidentally, had an immediate effect on Locke's career. Without
severing his connection with Oxford, he became a member of
Shaftesbury's household, and seems soon to have been looked
upon as indispensable in all matters domestic and political. He
saved the statesman's life by a skilful operation, arranged a
suitable marriage for his heir, attended the lady in her confine-
ment, and directed the nursing and education of her son-
afterwards famous as the author of Characteristics. He assisted
Shaftesbury, also, in public business, commercial and political,
and followed him into the government service. When Shaftesbury
was made lord chancellor in 1672, Locke became his secretary for
presentation to benefices, and, in the following year, was made
secretary to the board of trade. In 1675, his official life came
to an end, for the time, with the fall of his chief.
Locke's health, always delicate, suffered from the London
climate. When released from the cares of office, he left England
in search of health. Ten years earlier, he had had his first ex-
perience of foreign travel, and of public employment, as secretary
to Sir Walter Vane, ambassador to the elector of Brandenburg
during the first Dutch war. On his return to England, early in
1666, he declined an offer of further service in Spain, and settled


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330
John Locke
again in Oxford, but was soon induced by Shaftesbury to spend
a great part of his time in London. On his release from office, in
1675, he sought milder air in the south of France, made leisurely
journeys, and settled down for many months at Montpellier. The
journal which he kept at this period is full of minute descriptions
of places and customs and institutions. It contains, also, a record
of many of the reflections that afterwards took shape in the Essay
concerning Human Understanding. He returned to England in
1679, when his patron had again a short spell of office. He does
not seem to have been concerned in Shaftesbury's later schemes ;
but suspicion naturally fell upon him, and he found it prudent
to take refuge in Holland. This he did in August 1683, less
than a year after the flight and death of Shaftesbury. Even in
Holland, for some time, he was not safe from danger of arrest
at the instance of the English government; he moved from town
to town, lived under an assumed name and visited his friends
by stealth. His residence in Holland brought political occupations
with it, among the men who were preparing the English revolution.
It had at least equal value in the leisure which it gave him for
literary work, and in the friendships which it offered. In parti-
cular, he formed a close intimacy with Philip van Limborch, the
leader of the Remonstrant clergy, and the scholar and liberal
theologian to whom Epistola de Tolerantia was dedicated.
This letter was completed in 1685, though not published at the
time; and, before he left for England, in February 1689, the
Essay concerning Human Understanding seems to have attained
its final form, and an abstract of it was published in Leclerc's
Bibliothèque universelle in 1688.
The new government recognised his services to the cause of
freedom by the offer of the post of ambassador either at Berlin
or at Vienna. But Locke was no place hunter; he was solicitous,
also, on account of his health ; his earlier experience of Germany
led him to fear the cold air' and 'warm drinking’; and the high
office was declined. But he served less important offices at
home. He was made commissioner of appeals in May 1689, and,
from 1696 to 1700, he was a commissioner of trade and plantations
at a salary of £1000 a year. Although official duties called him
to town for protracted periods, he was able to fix his residence in
the country. In 1691, he was persuaded to make his permanent
home at Oates in Essex, in the house of Sir Francis and lady
Masham. Lady Masham was a daughter of Cudworth, the
Cambridge Platonist; Locke had manifested a growing sympathy


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