Wayward Contracts: The Crisis of Political Obligation in England, 1640-1674

Chapter 2
LANGUAGE AND THE BOND OF CONSCIENCE
Syllables govern the world [All Power is of God] means no more than Fides est servanda. When St. Paul said this, the people had made Nero Emperour. They agree, he to command, they to obey.

If our Fathers have lost their Liberty, why may not we labour to regain it? Answ. We must look to the Contract, if that be rightly made we must stand to it. If we once grant we may recede from Contracts upon any inconveniency that may afterwards happen, we shall have no Bargain kept. . .Keep your Contracts, so far a Divine goes, but how to make our Contracts is left to our selves. I tell you what my Glove is, a plain Glove, and pretend no virtue in it, the Glove is my own, I profess not to sell Gloves, and we agree for an hundred pounds. I do not know why I may not with a safe Conscience take it. The want of that common Obvious Distinction of Jus praeceptivum, and Jus permissivum, does much trouble men.
--John Selden, Table Talk
IN THE EPIGRAPHS to this chapter, Selden muses on the language of political obligation. Fides est servanda was a tag familiar from classical rhetoric, Roman law, the church fathers and canon law, and articulated the principle that we have a moral obligation to keep our promises, an obligation that seventeenth-century jurist and antiquarian John Selden elsewhere traced to a divine command. Fides est servanda meant that one's bare promise or word was binding, even in the absence of any written documentation or tangible proof of exchange; the technical term in civil and canon law was nudum pactum.1 But Selden, who was a preeminent scholar of the common law and always kept in mind the practical realities of human interaction, was less interested in bare promises than in how a moral obligation becomes a legal one. Thus he insisted that contracts needed to be made correctly, according to convention and positive law. God tells us to keep our promises but "how to make our contracts is left to ourselves."
This concern with convention inflects Selden's question about the political contract. Characteristically, Selden answers his own question about regaining political liberty with a discussion of economic contracts and the necessity of keeping one's bargain. This move is authorized by the theological distinction, familiar from Su�rez, Grotius, and others, between divine precept and permission. Although God commands us to keep our promises, he permits human discretion about the manner in which we promise and thus the definition of binding promises. So if we want to understand whether a contract is binding, it is not enough to look to the nudum pactum principle of fides est servanda; we must look instead to the particular contract, to see if "that be rightly made." If God is the remote cause of binding contracts, by virtue of his power to punish, convention is the proximate cause, not least of all the conventions of legal language. In this case, it is not conscience that authorizes the bargain; rather, conscience is freed from any reservations about shady deals by the fact that the seller has acted according to the conventions of exchange and has, moreover, "pretend[ed] no virtue" in the glove he wishes to sell.2
Selden immediately makes it clear that the principle that we must keep our promises does not mean that we cannot change our minds. Contracts by definition concern changeable human experience, contingent negotiations, not universal laws: "This is the Epitome of all the Contracts of the World, betwixt man and man, betwixt Prince and Subject, they keep them as long as they like, and no longer."3 In the charged political climate of the early seventeenth century, "keep them as long as they like, and no longer" might suggest that Selden thought of contracts in revolutionary terms. But, although Selden was an outspoken defender of parliamentary liberties in the 1620s and a critic of Charles during the Long Parliament, he insisted on the binding power of public and private contracts alike. "Every law," he remarked, "is a Contract between the King and the People, and therefore to be kept. An hundred men may owe me an hundred pounds, as well as any one man, and shall they not pay me because they are stronger than I? Object. Oh but they lose all if they keep that Law. Answ. Let them look to the making of their Bargain."4 Contracts for Selden were not merely expedient human arrangements to be broken when they no longer served private interest. Rather, contracts stood between men and brute force, between the individual and the hundred stronger men; they stood as well between society and the potentially subversive force of enthusiasm, the individual unrestrained by social agreements but empowered by his assurance of a heavenly contract. For Selden, this possibility was represented by the Anabaptist, of whom Selden asked rhetorically, "If we once come to leave that out-loose, as to pretend Conscience against Law, who knows what inconvenience may follow?"5