In a sense, the history of John Selden’s Titles of honor (1614) is one of friendship. As Ben Jonson observed in the poem he contributed to the volume, Selden (1584–1654) had dedicated the work to ‘no Great Name’ but to his friend and chamber-fellow Edward Heyward.Footnote 1 There was also a dedicatory verse to his friend and mentor William Camden.Footnote 2 It was a work born of friendship, and decades later, it would produce one. Thomas Hobbes praised the book in his Leviathan (1651); and, having sent a copy of his treatise to Selden, there began ‘a strict friendship between [them] to his [Selden’s] dyeing day’.Footnote 3 For most students of political thought, this is the nearest they will come to Titles of honor. First published in 1614, it is ostensibly a rather bland work, in which Selden described the origins, marks, and meanings of the various noble titles of Europe and the Near East. It attracted none of the controversy that would surround his Historie of tithes (1618); and, to posterity, it had none of the legal glamour of Mare clausum (1635).Footnote 4 Indeed, besides Hobbes’s fondness for the treatise, and James Harrington’s references in his Oceania, there have been few reasons for historians of ideas to take interest in this large and apparently antiquarian doorstop.Footnote 5 Even those who have appreciated the theoretical content of its first chapter – Selden’s ‘initial foray into the more abstract realm of political philosophy’ – have chosen to treat this as an aberration, with little bearing on the hundreds of folio pages that were to follow.Footnote 6
Inasmuch as it has been treated as a work of politics, the temptation has been to read Titles of honor in light of Selden’s subsequent political career – twice imprisoned by the crown, an author of the Petition of Right, and a prominent parliamentarian in the 1640s.Footnote 7 Paul Christianson was perhaps guilty of this anachronism in his study of Selden’s early life, treating Titles of honor as a product of French anti-absolutist (Monarchomach) ideas, and Selden as an advocate for ‘mixed-monarchy’.Footnote 8 As Johann P. Sommerville has noted, had these been Selden’s intentions, it is unlikely that Hobbes (an avowed opponent of mixed-monarchy) would have valued the work so highly.Footnote 9 But Sommerville’s own implication that the book was merely an assemblage of antiquarian facts and documents is also dissatisfying.Footnote 10 While it is true that by some accounts of his death Selden lamented ‘the loss of his time in studying things more curious than usefull’, there is little to suggest that he counted Titles of honor among these curiosities.Footnote 11 Indeed, as he made clear in the preface, Selden believed his treatise to be useful: ‘omitting, I think, no obsolet Title, the knowledge whereof may help to the understanding of those in present use…But such as were meerly proper to their times, and have not so much as their shadow left, I have willingly forborn.’Footnote 12 He would repeat a similar sentiment in the Historie of tithes: ‘it cannot be doubted but that the too studious Affectation of bare and sterile Antiquitie, which is nothing els but to be exceeding busie about nothing, may soon descend to a Dotage'.Footnote 13 Treating Titles of honor as a political work, in this article I will unpack precisely what Selden was trying to say and how he was trying to say it. This will mean reconstructing the various personal, political, and intellectual contexts to which Selden was responding, and the people and ideas he was criticizing. Only then, perhaps, can we begin to understand why Hobbes should have been so fond of a book by such a prominent parliamentarian as Selden.
In the hundred years prior to the publication of Titles of honor in 1614, Europe experienced two inter-related processes of change. On one hand, the emergence of the early modern nation-state saw an unprecedented concentration of wealth and power in central governments, often at the expense of the traditional nobility. On the other, newly founded confessional differences meant many of Europe’s noble families found themselves beneath monarchs with whom they no longer shared religious doctrine. Between these twin processes, the status of lesser magistrates became a subject of considerable interest; and theories of resistance became more numerous.Footnote 14 What it meant to be titled, and how titled persons stood in relation to their monarch, became contested ground. This article will discuss the influence of these debates on Titles of honor; the concepts of Roman law regarding the status of lesser magistrates as Selden understood them; and how these ideas became immediately relevant to his polemic in 1614. By the method, form, and content of his treatise, Selden was criticizing a long tradition of legal thought that privileged lineage over law, military valour over bureaucratic clarity, and sought to blur the boundaries between greater and lesser magistrates.
I
As a rule, Selden was reluctant to name his interlocutors. Indeed, his ‘irenic tone toward opponents’ can perhaps account for his scholarship’s often-apolitical reputation.Footnote 15 Even in his most polemical treatise, the Historie of tithes, he contented himself to refer only to ‘a few of the Malicious’ opponents in his preface.Footnote 16 Nonetheless, in the preface to Titles of honor, it is possible to identify the writers to whom he was responding. ‘If where I dispute of Dukes, Marquesses, Counts you find not so much out of old Civilians…as might bee heapt up from them to that purpose, blame mee not.’Footnote 17 Indeed, Selden went on, prior to the sixteenth century (when the mos Gallicus heralded a more historical approach to legal interpretation), ‘the Bodie of that Profession [civilian lawyers] was not amisse compard to a faire Robe, of Cloth of Gold, or of Richest Stuff and Fashion’ that had by their annotations been bordered with faeces.Footnote 18 This final scatological phrase is significant because it helps to identify the target of his ire. Selden was quoting the sixteenth-century poet and humanist François Rabelais (1483/94–1553), in whose poem Gargantua and Pentagruel (1534) the protagonist was tutored in the Roman law using the annotations of Accursius (c. 1182–1263); concluding that, though the Pandects were themselves beautiful, the glosses of Accursius were filthy and vile.Footnote 19 Selden would himself all but confirm this attribution when he returned to the subject of Roman law decades later in the Dissertatio ad Fletam (1647); this time identifying these ‘old Civilians’ as the twelfth- and thirteenth-century glossators Azo, Accursius, Hostiensis, and Odofred – practitioners of the so-called mos italicus.Footnote 20
But why was this relevant to Titles of honor? That Selden preferred the humanistic rigours of the mos gallicus to the scholasticism of their Italian forebears has long been understood by historians.Footnote 21 But his quarrel was more specific. He had already quoted the post-glossator Bartolus of Saxoferrato in his preface with evident approval; and he was at pains to note that, though he disparaged Azo, Accursius, and the early glossators in matters of nobility, ‘Where they talke of Meum and Tuum…they deserve to bee heard.’Footnote 22 His issue was with how the early glossators had described nobility in particular. To explain why, we must first understand how these medieval jurists understood royal and noble power; and to understand this, we must begin with the Roman lex regia. The lex regia may at first seem uncomplicated. According to Ulpian: ‘A decision given by the emperor has the force of a statute. This is because the populace commits (conferre) to him and into him its own entire authority and power, doing this by the lex regia which is passed anent his authority.’Footnote 23 The emperor’s power was legitimate because it had been given to him by the people; it was not on loan, and it would not expire. Power had been transferred to him by an act of permanent constitutional alteration. What power had been in the people, now lay in the emperor.Footnote 24 No such law had ever actually existed; the Roman people had never gifted total power to any emperor in a single act; and, in truth, the lex regia was a legal fiction created by lawyers like Ulpian to justify imperial power in the terms of the fallen republic.Footnote 25 As it had been originally intended, therefore, the lex regia was an uncomplicated defence of imperial authority.
But, as Selden knew, even doctrines as simple as the lex regia could become confused if neglected for too long. The Pandects had lain ‘hidden and out of use in the Western Empire’ from Justinian’s death in AD 565 until the reign of Lothar II in the twelfth century; and the realities of European political power had changed considerably in that time.Footnote 26 One need only glance at the continuing historical debates over the meaning and value of the term ‘feudalism’ to understand the diversity of relationships that existed between medieval monarchs and their vassal lords.Footnote 27 If the revived laws of Rome were to be deemed useful in this context, the lex regia would have to seem relevant to these feudal ambiguities.Footnote 28 To the Italian jurist Azo of Bologna, far from an irrevocable translation (translatio) of popular authority into the hands of the emperor, the lex regia described a power given on loan (concessio), and which the people retained the authority to take back.Footnote 29 Moreover, though the people as a collection of individuals (singuli de populo) could not make laws, as an incorporated whole (universitas sive populus) they retained power to legislate.Footnote 30 Not resting solely in the monarch, ultimate and undelegated power (merum imperium) was diffused throughout the polity: residing as much in the lesser princes and electors of the Holy Roman Empire as in the emperor himself.Footnote 31
Eventually, the Azonian lex regia became the orthodox interpretation among medieval lawyers.Footnote 32 Its growth in popularity can be attributed, in large part, to the influence of Azo’s student Accursius of Bagnolo (c. 1182–1263); whose Glossa ordinaria (1220–50) would remain the authoritative guide to the corpus iuris until the seventeenth century.Footnote 33 Emulating the earlier collection of biblical commentaries from which he took his title, Accursius placed the text of the Roman law itself in the middle of the page, and surrounded it with the various glosses and interpretations of subsequent lawyers. It was to this distinctive form of presentation that Rabelais had referred in the line Selden quoted in his preface.Footnote 34 Seeking only to give such interpretations as he found in others, Accursius’s treatment of the lex regia can at first seem confusing. Ostensibly, the problem verb conferre could be understood to mean either translatio or concession; he gave both views.Footnote 35 But modern scholars agree that his preference was for the latter interpretation; for a royal power delegated by the people; and that his medieval audience would have understood this.Footnote 36 Odofred, Accursius’s contemporary in Bologna, also defended the concessio interpretation; and, if Selden is to be believed, so too did the canonist Hostiensis.Footnote 37 To Selden, this interpretation was a craven one; created ‘at a time when European countries were enjoying free institutions and traditions’, and civil lawyers were reluctant to preach a lex regia that was inconsistent with feudal realities ‘lest…they might give offence and so damage the interests of their infant profession’.Footnote 38 Keen to prove the relevance of their expertise, they had made the lex regia into a law that would please their feudal paymasters.
This discussion of the medieval lex regia is by no means comprehensive. It serves only to identify and explain the ideas from which Selden sought to distance himself in the preface of Titles of honor. It was not, he believed, until the French humanists of the sixteenth century that the corpus iuris had begun to be understood properly; and he likened the work of all earlier lawyers to that of a judge who determined his cases by the throw of a dice.Footnote 39 This analogy was (again) lifted from the pages of Rabelais’s Gargantua and Pantagruel.Footnote 40 It refers to the scene in which Pantagruel attended the trial of Judge Bridlegoose (Bridoye). Bridlegoose was described as an elderly justice responsible for more than 4,000 judgements; all of them decided by the simple roll of a die (alea judiciorum).Footnote 41 The episode is already well studied, but there are a couple of important elements in the passage that may serve to illuminate both Selden’s reference, and clarify the terms of his polemic against the glossators.Footnote 42 In the first instance, Selden believed in an extremely unstable theory of human reason, in which most moral opinions were naturally changeable and often irreconcilable with one another: a faculty whose conclusions might at times seem no better than the roll of a die.Footnote 43 In this regard, the equivocal Judge Bridlegoose was an apt metaphor for the abstract and scholastic interpretations of the glossators, who had by their reason produced such contradictory interpretations of the verb conferre.
In the second instance, Selden’s reference to Bridlegoose further suggests the terms by which he understood his subject. In the relevant scene, the prosecuting lawyer was a character named ‘Trinquamelle’, a thinly veiled portrait of Rabelais’s friend and patron, the humanist lawyer André Tiraqueau (1488–1558).Footnote 44 Tiraqueau had published his own two-part treatise on the subject of nobility in 1549; and Selden referred to it in his preface with evident approval.Footnote 45 Notions of nobility in early sixteenth-century France had still been largely medieval.Footnote 46 Nobility was seen as indicative of military virtue, of valour on the battlefield, and not yet as a gift of the state. It was a conception that dovetailed with the powers and liberties permitted to lesser magistrates by feudal society – and the Azonian legal doctrine that lay beneath it. It was only towards the middle of the sixteenth century that the state began to take legislative control of the French nobility, and Tiraqueau’s De nobilitate was the first and most important theoretical expression of this reframing of the noble class.Footnote 47 Following the fourteenth-century jurist Bartolus de Saxoferrato, Tiraqueau described titles of honour as wholly legal entities: ennobling acts of law issuable only by the state. Like Tiraqueau, Selden began his discussion of nobility with a Bartolist principle (Sed quia, ob eam Originem, Princeps illum fuis legibus nobilitate) and his affinity with the Frenchman’s work evidently stemmed from their shared belief in a nobility by prescription – that is, a nobility whose power was delegated to them (concessio) by a sovereign.Footnote 48
II
But (again) why was this relevant to Selden? Why should the errors of twelfth- and thirteenth-century glossators and the legal status of sixteenth-century French noblemen have mattered to a young English lawyer in the second decade of the seventeenth century? To explain this, we must understand how these ideas regarding lesser magistrates were developed by the Monarchomachs; how they were transplanted into an English political context; and how these same ideas became relevant to Selden’s personal and political interests in 1614. The Monarchomachs’ polemics were essentially legal in character, and their greatest debt was to the medieval lex regia for which Selden expressed such contempt.Footnote 49 François Hotman, Hubert Languet, and Philippe Mornay all developed resistance theories that drew on established Roman law.Footnote 50 The people (represented by the nobility) could act as a single and incorporated whole (universitas).Footnote 51 It was this united body that had first given power to one individual (concessio) to create a monarchy.Footnote 52 As individuals (singuli) they were this monarch’s inferiors. But as a whole, they retained ultimate authority (merum imperium) and could (if they wished) depose the crown.Footnote 53 This was pure Azonian doctrine. Their historical examples might have been different; but the terms were the same.
Compared to France, there was relatively little religious conflict in England during the sixteenth century. But this did not mean that questions of resistance went uncontemplated; nor that the statuses of lesser magistrates were wholly uncontroversial. Like their French counterparts, the English nobility had begun the century as a supposedly self-regulating community of honour, and by 1600 they had become an increasingly state-administered jurisdiction – regulated from London by the College of Arms and its heralds.Footnote 54 In any number of ways, under Elizabeth, an increasingly powerful bureaucratic state had begun to chafe against what remained of the old chivalric class. As Richard McCoy puts it, the queen found herself keeping a ‘continuing compromise’ with her aristocrats; balancing her own growing power against their (half-medieval) doctrines of noble autonomy; and seeking harmony between the bureaucratic politics of an early modern state and the martial virtues to which many of her most powerful noblemen still aspired.Footnote 55
At court, these tensions were manifest in the rivalry between Robert Devereux, 2nd earl of Essex and the Cecils (William and his son Robert).Footnote 56 Essex was emblematic of the old chivalric virtues; a fierce defender of a self-regulating community of honour; with a habit of knighting troops on the battlefield – much to Elizabeth’s annoyance.Footnote 57 The Cecils, on the other hand, stood for the caution, centralization, and bureaucracy of the late Elizabethan state; and for much of the 1590s the court was divided between advocates for modern political bureaucracy and the last powerful vestiges of feudal autonomy.Footnote 58 The rivalry would end in 1601 with the failure of Essex’s revolt and his execution at the hands of Robert Cecil – a deed for which Cecil’s detractors would continue to lambast him until his own death in 1612.Footnote 59 But before any of this, the polarization of the Elizabethan court would be played out in a small but important episode in the history of the College of Arms. Traditionally overseen by the earl marshal (a nobleman), since 1590 the College had been headed by a government commission run by the elder Cecil.Footnote 60 Looking to enlarge his own position at court (and assert the autonomy of the aristocracy), Essex sought to become earl marshal in 1597.Footnote 61 He was successful. But not before Cecil, as a parting gift, had appointed his man the antiquary William Camden to the senior position of Clarenceux King of Arms.Footnote 62
Camden’s appointment was significant because it enraged the York herald, Ralph Brooke, who had coveted the Clarenceux for himself. In 1599, Brooke composed a treatise detailing the Discoverie of divers errours he had identified in certain genealogies in Camden’s Britannia (1594).Footnote 63 Hoping to curry favour, he dedicated the book to the earl marshal, and thereby allied himself (probably unwittingly) to Essex’s doomed cause.Footnote 64 Camden included a response in the next edition of his Britannia (1600), and the feud would last until his death in 1623. The frontmatter of the first edition of Titles of honor is littered with references to an unnamed enemy. To the title page, Selden attached a quotation from Lucilius: Persium non curo legere; Laelium Decimum volo (‘I do not care if Persius reads [this]; I want Decimus Laelius to’).Footnote 65 In the dedication to his chamber fellow Edward Heyward, he made a point of contrasting ‘the speciall worth of your Qualitie and of some more’ with ‘that world of Nature infinitely varied by basenesse of Spirit, Daring ignorance, Bewitcht sight, [and] worst inclination’.Footnote 66 He began the preface with reference to the same foe: ‘Blesse me Mercurie from thy old Enemie the Daring Ignorant!’Footnote 67 And he ended the preface by pre-empting potential criticism: ‘Malicious Censure I regard not, Ingenuous I honor.’Footnote 68 But who was this enemy? Selden would have no public rivals until four years later, with the publication of his Historie of tithes.
It is of course possible that Selden only meant the ‘Daring Ignorant’ in a figurative sense; and that he was writing in refutation of ignorance in general. But this seems unlikely. He went on to explicitly forgo any further allusion to his enemy, for fear of doing wrong to ‘thy honor, should I, so neer mention of thy Name, speak to him’.Footnote 69 Evidently, Selden had someone specific in mind; and they were an enemy he shared with someone he had already named in the frontmatter. Besides Mercury (and Apollo), the only names Selden had mentioned thus far were those of Heyward, his physician the Hermeticist Robert Fludd, and ‘that Singular Glory of our Nation and Light of Britaine, M. Camden Clarenceux’ – to whom he addressed a poem in Greek.Footnote 70 Outside of his association with Selden, we know very little about Heyward’s life, but there are no signs of any enemies. Fludd had enemies: those who questioned the truth of the corpus Hermeticum.Footnote 71 But Selden gives every indication of sympathizing with these authors and their doubts in Titles of honor; so it is unlikely that he and Fludd would have shared these enmities.Footnote 72
This leaves only Camden; and Camden’s enemy was Brooke. There can be no doubting that Selden was of the Camden–Cecil party. In 1610, he dedicated his history of English law to Robert Cecil; in 1612, he described Camden as a friend in his illustrations to Michael Drayton’s Poly-Olbion; and, perhaps most pertinently, he would himself offend the York herald with Titles of honor, eventually responding in a letter attached to Augustine Vincent’s attack on Brooke in 1622.Footnote 73 That Selden did not once mention Brooke by name in Titles of honor need not dissuade us from reading it as an intervention in the feud. Camden had not named Brooke when responding in the 1600 edition of Britannia; obliging Brooke to later identify himself ‘to be the Quidam, whom you accuse’.Footnote 74 Selden seems to have followed the same convention, and the letter he attached to Vincent’s polemic (self-evidently an attack on Brooke) also left the York herald unreferenced and unnamed.
Brooke had couched his original tirade in methodological terms: claiming that Camden’s errors were symptomatic of the outsider historian’s failure to master the specialist skills of the heraldic vocation.Footnote 75 To Brooke, Camden’s use of ‘scholler-like’ Latin betrayed his status as an interloper from the schoolroom.Footnote 76 Conversely, Brooke’s lack of scholarly learning, his refusal to cite his sources, and the absence of archival evidences from his diatribes provided ammunition to Camden and his allies. Vincent complained: ‘For Yorke, I saw no proofes, but Pythagorian proofes, in steed of Scriptum est, Ipse dixit, no Record, no Antiquitie, but his owne antiquitie of fortie yeares Practise in that Studie: this I liked not.’Footnote 77 Selden took the same approach, praising Vincent for his diligent use of ‘the publique Records of the Kingdome’; and lamenting that (besides the work of Camden and Francis Bacon) ‘we have not so much as a publique piece of the Historie of England, that tastes enough either of the Truth or the Plenty that may be gained from the Records of this Kingdome’.Footnote 78 What Vincent said explicitly, Selden implied; and there is evidence he had been making similar implications in Titles of honor. Regarding legal sources, he wrote: ‘The Margine confesses, without blushing, their and other mens helps.’Footnote 79 And, addressing those who by ‘Envie or Ignorance’ might question his right to discuss honourable titles (being ‘bred from the bottome of Obscuritie’), Selden quoted a former bishop of Lincoln: ‘That there was, in Libraries, greater aid to the true understanding of Honor and Nobilitie, then mongst Gold and Purple outsides.’Footnote 80
Reading Titles of honor in this context, Selden’s argument becomes clearer. He disparaged those who did not know their proper station: the ‘Daring Ignorant’ who challenged the rights of their superiors.Footnote 81 In a book about the marks of pre-eminence in the commonwealth, Selden’s argument was with those who sought to destabilize these hierarchies. At a personal level, this meant defending Camden’s appointment as the Clarenceux against Brooke’s protestations; the validity of historical and archival methods in the description of noble titles; and questioning the genealogical methods of the College. At a political level, it meant a comprehensive assertion of the supremacy of the monarch against the claims of their lesser magistrates; a rejection of the Azonian lex regia; and absolute clarity regarding the ultimate and singular location of merum imperium in the commonwealth. As expressed in Titles of honor, Selden’s personal and political agendas were in harmony. To begin with, the principle of a single unitary sovereign (from whose delegation all titles of nobility derived) not only meant rejecting the Azonian doctrine of dominium divisium and the resistance theories of Essex and the Monarchomachs; it also provided a firm theoretical anchor for Camden and Selden’s historical method, one that privileged the records of state legislation over those of family lineage.
Like Tiraqueau, Selden defined honorific titles in explicitly Bartolist terms. Sovereign power begat noble power, and noble power only existed according to the determinations that the sovereign made for it. Titles of nobility were simply the means ‘by which, as the first degree above the Multitude, an honoring distinction is made, either by acquisition from the Prince…or by Discent from Noble Ancestors’. Footnote 82 Indeed, even a hereditary gentleman was not only noble ‘in regard of his Ancestors, Sed quia, ob eam Originem Princeps illum suis legibus nobilitat [But because, by reason of that origin, the Prince ennobles him through his own laws], as Bartol will have it’.Footnote 83 Heredity, Selden went on, was itself a legal provision based on the supposition that ‘if the father be Noble, the issue with resemble him’.Footnote 84 But this was no more than a supposition; and, though Selden seems to have agreed with Aristotle that ‘one not like his Parents is, in some sort, a Monster’, he was aware that many other variables could influence the character of one’s offspring.Footnote 85 It mattered how many generations it had been since one’s family was first ennobled; and there were those, like Galen, who believed that ‘the Minds inclination follows the Bodies Temperature’.Footnote 86 Even in noble families, it was possible that virtue might be lost, resulting in a ‘degenerating issue’.Footnote 87 In the final analysis, Selden concluded that it was the sovereign’s responsibility to give and take away titles of nobility; and that if ‘Honor and deserving Vertue accompanie not each other, its his Fault and Error'.Footnote 88 In other words, for all Brooke’s gloating at Camden’s genealogical errors (‘mistaking the Father for the Sonne, and the Sonne for the Father’), it was ultimately in law and not blood that the truth of nobility lay.Footnote 89 As he would write in the second edition of Titles of honor: it was in ‘Charters or Patents wherein the very essence of most of our Subordinate Titles consists’.Footnote 90 The talents required to study them, therefore, were of the burrowing and archival kind that Brooke had so condescended; and Camden, Vincent, and Selden so typified.
III
Selden structured Titles of honor according to anti-Azonian principles. In both editions, he divided the book into two parts: the first dealing with what he called ‘Supreme’ (or sovereign) titles, and the second with those titles he deemed ‘Subordinate’.Footnote 91 He explained the distinction in the second edition:
The Supreme are either belonging to Singular persons in independent Monarchies, as Emperor, King, and what else is so Supreme according to the Customes and Languages of severall Nations, or such as in Popular States and Optimacies are the Honoring titles of More in one Body, or of that Number which hath in it the Supreme Rule of the State. The Subordinate belonging to Singular Persons (those that belong to more in one body we omit also)…In the Handling of the Titles thus designed for the Subject, wee make two Parts of the Worke according to that division of Supreme and Subordinate. One for each of them. Yet so, that the titles of King, as it hath beene sometimes given to subjects…is cast into the first Part with the title of King which is Supreme. It was the easier and cleerer method to do so.Footnote 92
There is a lot of detail in this passage. To begin with, Selden was careful to distinguish between titles as they represented ‘Singular persons’ and as they represented ‘More in one Body’. His treatise was about the titles attached to singular persons, and he thereby forwent discussion of the sovereign assemblies of democracies and the corporations of private law. Therefore, by definition all of the titles discussed in the treatise (and the list is an exhaustive one) were to be understood as singuli and not as the universi of an incorporated people. The nobility was a body of ‘Singular persons’. Without a sovereign to govern them, they formed an unruly multitude – incapable of the kind of unified action the Monarchomachs described.Footnote 93
Most importantly, by distinguishing between supreme and subordinate titles so clearly, Selden rejected the blurred and ambiguous lines of authority that the medieval glossators had drawn between monarchs and their lesser magistrates – the ambiguity that had created the legal space for the Monarchomachs. Though he did not use these terms, Selden was (in effect) re-establishing the Roman distinction between imperium and iurisdictio; and, in this regard, part one of Titles of honor was as much about those titles that were not supreme as about those that were. In the earliest societies, Selden wrote, government had been ‘Oeconomique’, and every man had been a sovereign lord over his own family, all ‘equally free and equally possest of superioritie’.Footnote 94 Compelled by a natural sociability, these oeconomic sovereigns formed a ‘Popular state’; and, seeing ‘the imperfections of the giddie-headed multitudes government’, ‘subjected themselves to some eminent One’.Footnote 95 In essence, this was the story of the lex regia; and, by Selden’s account, the translation (translatio) of power from people to monarch had been so complete as to resemble the creation of a God.Footnote 96 A ‘Supreme’ title was not defined by any name, style, attribute, or insignia – all such things could be shared with titles that were subordinate. A supreme title was distinguished from other dignities by the fact ‘that it acknowledges no superior, but, according to the various institution of severall Kingdomes, is accompanied with the highest rights of Majesty and Soveraigntie’.Footnote 97
In many ways, part one of Titles of honor resembles the final three chapters of book one of Jean Bodin’s Republic (1576); in which the Frenchman had sought to define sovereignty by sifting through the many titles of Europe, distinguishing between subjects and sovereigns, and undertaking to ‘know the markes, which are not common unto…subjects also’.Footnote 98 Indeed, if the early chapters of Titles can be said to have an argument, it is that many sovereigns were not kings, and that many kings were not sovereign.Footnote 99 The word having ‘grown odious to Roman libertie’, the Romans had not called their sovereign ‘Rex or King’ under the empire.Footnote 100 They called their sovereign an ‘emperor’ though he was no different to a king.Footnote 101 The rulers of Muscovy had been no less sovereign for having been called ‘Weliki Knesi’ (or, ‘Great Dukes’); and their status had not been changed when they had chosen to instead be known as ‘Czar’ (or, ‘King’).Footnote 102 By the same measure, simply to be called a ‘king’ did not render a title supreme.
[I]t [sovereignty] acknowledges no superior. But so many as have, or do, as feudalities to other Princes, are excluded out of their ranke which before are indifferently titled Kings or Emperors. The K. of Bohemia (when it was in another hand, from the Empire) although he were crowned and anointed, yet, being in a manner the Emperor’s Subject, wanted perfit Supremacie for it; as also, they of Sicily when they had investiture from the Pope, they of Cyprus being anciently as Tenants (yet crowned) of both Empires, and such like.Footnote 103
In England, the Saxon Heptarchy had contained six men who had been called kings; though they were ‘but as subjects to the supreme, whom they called Anglorum Rex Primus, or such like’.Footnote 104 Selden likened these ‘inferior kings’ to
those of Man, who have had it alwayes by a tenure from their soveraigns, the Kings of England, especially ever since Henrie IV., possessing it by the forfeiture of the Lord [William] Scrop[e], invested Henry Percy Earle of Northumberland, in it, in fee simple…It hath been since, by Escheat, in the Crown, and was bestowed on the noble Family of the Stanley’s, by the same K. Henrie, and in their Posteritie, being Earles of Derby, it continues.Footnote 105
The king of Mann had been a supreme title. Edward III of England had renounced his claim over the island in 1334, and handed full sovereignty to the earl of Salisbury.Footnote 106 But this supremacy had ended in 1399, when Henry IV had seized the lands of William le Scrope (earl of Wiltshire and king of Mann) for his loyalty to the deposed Richard II. When Henry then invested the title in Henry Percy (as was evident in the patent, from which Selden quoted), he did so as an act of concessio and not translatio.Footnote 107 Where Scrope had been a supreme king of Mann in July 1399, by October Percy had become a subordinate one. Indeed, as much was proved just six years later, when Percy rebelled against the king; and, though he escaped to Scotland with his life, Henry confiscated the crown of Mann, and granted it to the earl of Denby. Few passages in Titles of honor better express Selden’s essential polemic, of the qualitative difference between subordinate and supreme, and the ultimate importance of legislation to all such enquiries.
In the second part of the treatise, Selden turned his attention to subordinate titles. Beginning with the most senior (heirs to the throne), he proceeded to describe the meaning and origin of dukes, marquesses, counts, earls, viscounts, barons, knights, esquires, and barons.Footnote 108 For our purposes, the most significant chapter is the one that he dedicated to the origin of feuds.Footnote 109 Reading the treatise as a work of antiquarianism, Gerald Toomer has treated this chapter as something of a digression – a short discourse on ‘a question only marginally relevant to the topic of the book’.Footnote 110 Seen in the context of Brooke’s dedication to the earl of Essex and Selden’s objections to the Azonian lex regia, however, it makes sense that he should have discussed the subject. According to the ‘common opinion’, feudalism had begun in the customs of the Lombards, codified in Milan, and thereafter dispersed throughout Europe.Footnote 111 But Selden disagreed with this narrative. Following the French humanists, he argued that feuds – as they existed in his day – ‘should bee derived out of France’.Footnote 112 For, he went on, ‘what els was their Terra Salica but as a Knights Fee, or land held by Knights service…And those Salique laws are supposed much ancienter then the Lombardian Kingdome in Italie.’Footnote 113
We must be careful how we read this passage. Depending on the historiographical context into which one places it, it can seem to imply either of a couple of political positions, neither of which accurately describes Selden’s intentions. Perhaps the most vocal opponent of the Lombardic theory in the sixteenth century had been François Hotman; and Selden deferred to his account on more than one occasion.Footnote 114 For Christianson, this deference has become evidence of his sympathy with Monarchomach politics.Footnote 115 For an author who would go on to oppose the royal prerogative so vehemently in the 1620s, 1630s, and 1640s, it is intuitive to associate him with the past century’s most storied critics of absolutism. But the theoretical bases of Selden’s constitutionalism were quite different to those of the Monarchomachs. There is little in the text of Titles of honor to suggest the theory of divided sovereignty (‘mixed-monarchy’) Christianson describes; and it is difficult to see how Hobbes would have developed such admiration for the treatise had it expounded such a view.Footnote 116 Moreover, to assume that Selden was repeating Monarchomach doctrine simply by finding the origins of feudalism in France (not Italy) is unhistorical in a number of ways.
In France, a story of Gallic feudal origins had never been the preserve of any single political position. The notion that feudal law had been imported from Italy was unpleasant to many French humanists because it implied the usurpation of their own native customs. It was important for writers like Hotman – for whom the ancient rights of France’s representative assemblies were their best bulwark against tyranny – to reassert these native customs. It was equally important for defenders of the ancient rights and powers of the French crown to dispel any notions of foreign subjection.Footnote 117 But to an English writer like Selden, the same history meant precisely the opposite. By tracing English feudalism to a French origin, Selden was affirming and not denying a foreign imposition. Though he accepted that there had been some form of ‘militarie Fiefs’ before the Norman conquest, ‘[t]hose kind of Militarie Fiefs or Fees as wee have [now], were not till the Normans; with whom the custom of Wardships in Chivalrie…came into England’.Footnote 118 In England, the imposition of fiefs was evidence of royal supremacy, not of feudal autonomy. But, again, we must be careful. To readers familiar with John Pocock’s Ancient constitution and the feudal law (1957) this argument might also seem strange.Footnote 119 To Pocock, the assertion that Norman feudal law had been imposed on the Saxons was an inherently anti-parliamentarian position. It meant a discontinuation of the English ancient constitution, a rejection of the rule of law, and a defence of the royal prerogative against parliament. For a known parliamentarian like Selden to have made such an argument was curious. For those writing in Pocockian terms, it has therefore been logical to assume that his motives were apolitical.Footnote 120
But we should remember that Pocock framed his study according to the debates of the second half of the seventeenth century.Footnote 121 By his account, the first English studies of feudalism in the 1610s and 1620s had been wholly antiquarian endeavours; written by men (like Henry Spelman) who were unaware of the potential political significance of their work.Footnote 122 It was only in the years of the Interregnum and Restoration, Pocock claims, that this ‘discovery’ of feudalism was put to polemical work by royalists like Robert Brady, seeking to falsify parliamentarian claims of an immemorial ancient constitution.Footnote 123 But this should not distort our reading of Selden’s discussion in Titles of honor. To his purposes, writing in criticism of noble not parliamentary opposition to the crown, the imposition of Norman feudal law on the Saxons would have been attractive in two ways. By asserting the Conquest, Selden ensured that William had claim to an encompassing ‘suprem[e] dominion’; and that no single ‘foot of land within this Realme [was] to be free from either mediat[e] or immediate[e] Tenure of him’.Footnote 124 What titles existed thereafter existed only by the expressed concession of William and his successors. The second attraction of the Norman Conquest for Selden’s polemic pertained to the nature of feudal tenure itself. Following convention, Selden derived the word feudum from the Latin fides (meaning ‘loyalty’).Footnote 125 One in possession of feudal tenure did so as a vassal to the sovereign; and, on inheriting the property from their predecessor, an heir paid a relief (or ‘Heriot’) to the crown, taking ownership as if it were ‘a new Purchase’.Footnote 126 Where there was no tenure – and ‘the enheritance discended freely to the Heire’ – there was no feudum, but instead what was called alodium; and lands held by alodium were ‘possest without service or subjection’.Footnote 127 There was no allodial land in England; and this served only to emphasize what Selden had written in his preface: that even those who held their titles by inheritance did so by the gift of their prince.Footnote 128 They were subordinate, and he suggested they remembered it.
IV
To call what Selden was doing here ‘polemical’ may seem too strong. To a modern reader, his methodical description of titles, their origins, and the original text of their patents of creation, is hardly comparable to the invectives of Bodin or the Monarchomachs. Indeed, besides the few passages recounted above, the majority of the book is probably as antiquarian as its subsequent reputation would suggest. But the polemic of the treatise lay in its method not its content. Seen in contrast to the genealogical approach of heralds like Brooke, and the Azonian arguments of the Monarchomachs, Selden’s decision to privilege the archives of state legislation over the records of noble families or the chronicles of medieval history was an overtly polemical one. He has been called ‘England’s first legal historian’; and, as we have seen, the strength of his claim to this title lies as much in the clarity with which he defined and expanded the field of the ‘legal’ as in his knowledge of the precedents of the common law.Footnote 129 The operative element in law was not its content, but its source: the power framework according to which it was commanded. Titles of honour were created by the command of human sovereigns; and, under a single sovereign, their proper study lay also in a single archive: that of the state. They therefore fell within the sphere of legal study – not that of heraldic visitation or scholastic speculation.
To Selden, the ambiguity that had surrounded the status of lesser magistrates in the previous century was symptomatic less of the subject’s inherent complexity than of seeking one’s answers in the wrong place. Status was a legal contrivance expressed only in legal documents, not in the pedigree of one’s blood or valour on the battlefield. Four years later, Selden would perform a similar act of redefinition in the Historie of tithes.Footnote 130 Again, he was imposing himself (a lawyer and historian) upon a debate in which he could hardly expect to be welcome – this time an ecclesiastical one. If possible, the question of tithes was even more contentious than that of titles. The primary source of income for parochial churchmen, they had been a source of constant litigation between the clergy and their parishioners for centuries.Footnote 131 Such disputes, for Selden, would remain unresolved for as long as the disputants continued to seek answers in the realms of iure divino and ignored the stocks of ‘positive Law’ – ‘[f]or what State is [there] in all Christendom wherein Tithes are paid de facto, otherwise than according to humane Law positive?’.Footnote 132 How could they ever hope to achieve clarity when they were asking God for explanation of a command he had not given?
In the Historie of tithes, as in Titles of honor, Selden’s polemic lay less in the arrangement – the ‘meer Narration’ – of the facts, and more in the facts he deemed relevant to his study.Footnote 133 In truth, both works were fairly impartial reflections of their source material. But Selden’s invective had been expressed in his choice of archive – the records of state legislation – rather than through any particular interpretation thereof. As a ‘legal historian’, therefore, he could justly claim to be impartial. To be a legal historian, however, working in the fields of heraldry and tithing, displayed a fundamental partiality towards the emerging early modern bureaucratic state – and against the wilting authorities of the nobility and church.Footnote 134 The writing of a legal history of a subject implied the more or less unimpeded jurisdiction of civil magistrates over it; and, though this may seem uncontroversial to the modern reader, for an early modern writer like Selden it represented a very deliberate political decision. He had chosen to argue in terms that took the total supremacy of the state for granted. In a society that still contained an extremely powerful clergy and nobility – one in which many questions of politics were deferred to the supposedly natural orders of virtue, valour, and divinity – Selden was throwing his lot in with Camden, the Cecils, and the sovereign.
But how does this (apparently royalist) interpretation of Titles of honor sit alongside Selden’s subsequent parliamentarianism? It is possible to construct a narrative in which Selden began his career as an apologist for the crown, and then changed his convictions sometime in the 1620s. King James had forced him to apologize for the Historie of tithes in 1619, he had imprisoned him in 1621, and again in 1629.Footnote 135 Selden had served as a lawyer to one of the defendants against the crown in the Five Knights’ Case (1627), and he had co-authored the Petition of Right in 1628.Footnote 136 There is ample evidence to suggest that by 1629 the Selden who had defended royal authority in 1614 had become disillusioned. But this narrative is not sustainable. As we have seen, Selden retained many of the same basic arguments in the 1631 second edition of Titles.Footnote 137 Furthermore, in the articles of his posthumous Discourse, mostly collected between 1634 and 1654, Selden was still recorded as saying that ‘all the land in England is held, either immediately or mediately, of the King’.Footnote 138 Of course, it is possible that Richard Milward (compiler of the Discourse) never actually heard Selden speak these words; and instead paraphrased them from his reading of Titles of honor – the book’s modern editor Jason P. Rosenblatt has suggested that certain articles were likely composed in this way.Footnote 139 But, even if this were the case, it would have been strange for Milward to have dredged up opinions he knew his friend to have recanted.
It is more likely that Selden believed these defences of royal sovereignty to be compatible with his opposition to the throne in the 1620s, 1630s, and 1640s; and that he held the same opinions regarding sovereignty from Titles of honor until his death in 1654. Even in 1614, Selden had been careful to distance himself from those who considered royal authority to be a divine right. He spent a number of pages in Titles of honor describing and mocking those peoples who had mistaken their monarchs for deities.Footnote 140 As he put it in the Discourse, ‘Never any King dropd out of the Clouds.’Footnote 141 And, although all land in England was held ‘either immediately or mediately’ by the king, it was also true that ‘[a]ll things are held by Jus Divinum, either immediately or mediately’.Footnote 142 Supreme on earth, sovereigns were still accountable to God; and, as Selden’s later theory of natural law would make clear, all humans (sovereign or not) were commanded by God to keep their contracts.Footnote 143 Laws were contracts between monarchs and their people, and failure to keep these contracts was a violation of divine as well as human law.Footnote 144 The powers of a king were only as their legal codes described them to be; hence the variety among monarchs.Footnote 145
But Selden did not express these principles in Titles of honor. What would have been the point of emphasizing the limitations of royal power when one’s primary interlocutors were its aristocratic opponents? Titles of honor, therefore, contains just as much of Selden’s political theory as Hobbes would have agreed with – presenting the commonwealth as a densely hierarchical system, erected in preference to disorder, in which sovereigns prowled like mortal gods. Like Hobbes, he doubted the capacity of the multitude to constitute a united body (universitates), and did not believe in the historicity of so-called ‘Golden ages’.Footnote 146 But Selden was no proto-Hobbesian. In the simplest terms, Selden believed sovereigns were bound by their own laws, and to Hobbes this was absurd.Footnote 147 He would spurn the metaphysical underpinnings of Selden’s natural jurisprudence; and, where Selden conceived of a world governed by the ‘Sillables’ of divinely overseen contracts, Hobbes saw no power that was not guaranteed by ‘Men, and Arms’.Footnote 148
Acknowledgements
My thanks to Scott Mandelbrote, Michael Edwards, and Tom Roebuck for their comments on earlier versions of this article. My thanks also to the editors and anonymous reviewers at The Historical Journal, whose comments have proved invaluable.
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