Writs of Assistance, 1558-1700

Home , Baron of the Exchequer, Edward Bromley, John Croke, John Puckering, Julius Caesar (judge), Master of the Rolls

356 July

MONG the many notes which Clarendon passed across the Downloaded from AL. council table to his royal master, Charles II, there is one which runs as follows : (Chancellor): Is it your pleasure that I derecte those of your privy Councell, who are not Peers, nor of the house of Commons, that they attende the house of Peers accordinge to custome ? http://ehr.oxfordjournals.org/ (King) : that which is the custome. (Chancellor): Should not those Councellors attende the house of Peers, and sitt on the WooUacke ? (E. of Manchester): Itt hath allwayes bin the custome thatt writta off assistance have bin sent vnto all councellors thatt were nott Peeres and did nott sitte in the house off Comons. (Chancellor): Now no writts are sent to any, the kings derection will be enough ? at University of Connecticut on July 6, 2015 (Manchester): the Kings direction is enoughe to your Lordp to issue oute those writts to such persons. (Chancellor): Ther are no writts issued to any, the Judges sitt only by derection : the sending© out writts to the assistants, beinge not con- gruous, when the Peeres themselucs haue no writts.1 (Manchester) : Your Lordp propounds a question to be considered yett the vsuall waye was by writto iff tho iudges haue none the counsellors neede nott to haue any.2 This antiquarian discussion between Clarendon and Man- chester opens up the whole question of the writs of assistance and the persons to whom they were sent : were the members 1 This cannot, Jeanne, be taken as a statement of the usual procedure, for both the peers and the judges had writs at this time (see below); but Clarendon is probably referring to the state of things that existed in the convention of 16ttO, when the peers received no writs of summons at all, but assembled on their own initiative ; the masters in chancery, but not the judges, were in attendance on the lords from the beginning, and on 4 June 1060 it was ordered ' that the lord chancellor do move the king to order writs to the judges to attend the House as assistants ' ; on 5 June he reported that the king had made such an order, and on 0 Juno the judges wore in attendance (Lords' Journals, xi. 62-4). From Clarendon's remarks it would seem that, on this occasion, the judges received the king's order only, and no special writ of assistance. In ths convention of 1689 the lords merely required certain persons learned in the law to attend ou the house as assistants (Lords' Journals, xiv. 102, 110, 165); no writs were apparently issued and no Pawn has survived. 1 \V. D. Mar ray, Soles at Meetings of the Privy Council beiitten Charles II and Clarendon, p. 18. 1921 WRITS OF ASSISTANCE, 155&-1700 357 of the privy council ever summoned, as Clarendon suggests, along with the legal advisers of the Crown to ' be present with us and the rest of our council to treat and give your advice upon the affairs aforesaid ' ?l Fortunately there is in the Public Record Office a series of documents which should contain the information necessary to settle the matter once and for all. These are the so-called Parliament Pawns1 or enrolments, first, of the writs to the spiritual and lay peers, secondly, of the writs of assistance to the judges and others, and, thirdly, of the writs to the sheriffs of the various counties calling upon them to return knights and burgesses to the house of commons; in each case Downloaded from the writ is given and is followed by a list of the persons to whom it was sent. That these Pawns are enrolments of the writs of summons to parliament there seems little doubt, for they are exactly http://ehr.oxfordjournals.org/ parallel to the enrolments of the writs.on the back of the Close Rolls, which they superseded.3 But during the Protectorate their nature appears to have been misunderstood. Formerly they had been written in Latin ;4 for the two Protectorate parliaments for which Pawns have been preserved,6 they are in English, and in translating the usual formula, ' Consimilia breyia diriguntur', &c, the Protectorate official has rendered it 'Let

the like Writts be directed ', and has used the Pawn as a warrant at University of Connecticut on July 6, 2015 to the clerks of the petty bag to issue the writs, and, that there may be no mistake, he has addressed it at the foot ' To John Thompson Esq. one of the Clerks of the pettibagg '.•

1 This phrase, which is the one now used (' nobteoum ac com ceteris de consilio nottro' m the Latin form in use in the seventeenth century), is the essential charac- teristic of the writ of amlntannc ; the writ to the peers summons them ' on their faith and allegianoe' to be present ' with as and with the aforesaid prelates, peers and great men' (' nobiscum ac com prelatis, magnatibus et proceribus praedictis ')- The form of the writ of assistance does not really imply any subordination in the position of those whom it summoned ; historically the judges and others were then because they were members of the king's council, which really formed the nucleus of the house of lords. » The exact description is Petty Bag, Parliament Pawns. * Scargill-Bird, Guide to the Public Record*, p. 76. He also Ays that these Pawn* are transcribed in full in Dugdale, Summons to Parliament, but this is not the case; after the parliament of 1529 Dugdale always omits the writ of assistance and the names of those who were summoned by it. 4 This practice was resumed in 1660 and continued until well into the eighteenth century. * There is one Pawn for the lords and assistants who were summoned to meet in 1608, and there are three Pawns for the parliament of 1669—one for the lords, one for the commons from England and Wales, and one for those from Scotland and Ireland; there is also a Pawn for the convention of 1660. There are no others for the Common- wealth and Protectorate. These five Pawns are at present plaoed unnumbered at the bottom of bundle i, and though this position probably arises from the lawyers'-refusal to recognise the Cromwellian parliaments, yet, in a way, it is symbolic, for these Pawns are really quite distinct from the rest of the series and will be considered in greater detail below. * Pawn for the parliament of 1669. 368 WRITS OF ASSISTANCE, 1558-1700 July These Parliament Pawns are now arranged in four bundles, of which the first, covering the period from 21 Henry VIII to 3 William III,1 consists of flat sheets of parchment, one for each parliament; in the three later bundles,2 however, the parchment sheets are replaced by small rolls of two or three skins apiece, each roll containing the writs for a single parliament; for the last two parliaments of which the Record Office has knowledge, there are two parchment books instead of the usual rolls, and though the form of the writ of assistance is given, there is no mention of the persons to whom it was sent. Downloaded from At exactly what point in the life of a parliament its Pawn was drawn up cannot be determined with any certainty, for there seems little doubt that the procedure in this connexion varied considerably. As was pointed out above, the Cromwellian Pawns were used as warrants for the preparation of the writs of http://ehr.oxfordjournals.org/ summons and therefore must have been compiled before those writs were issued; moreover, three other Pawns are for parliaments that never actually met at all: no. 6 records the summon- ing of a parliament to meet on 18 September 1553 and Edward VI died in July, and nos. 26 and 27 are for those two parliaments of 1688 which were promised by James II in order to placate his subjects, but altered circumstanoes caused him to change his mind, and in consequence, though the writs were prepared, at University of Connecticut on July 6, 2015 the elections were never held.8 Naturally on this evidence one would assume that the Pawns were drawn up before the assembly of parliament, and this seems to have been the normal procedure after the Restoration ;4 but that such was not always the case is shown by the Pawn for the parliament of 1604-11. Sir Thomas Fleming is there summoned in three capacities, as chief baron of the exchequer, as chief justice of the king's bench, and as solicitor- general. Of course, he held these offices in succession, but he is named as chief baron and chief justice several lines before he appears as solicitor-general, and, as there seems to be no likeli- hood that these two later titles could have been inserted after the completion of the list, it must follow that it was drawn up in a Bomewhat haphazard and unchronological order not earlier than 8 February 1610, the date of his summons to attend the peers as lord chief justice.5 That this is not an isolated case can

1 This is the only bundle which has any serious gape ; there are no records from the accession of Elizabeth until the parliament of 1686, and those for the parliaments of 1636, 1642, 1614, 1621, 1626, 1628, and 1640 (Long Parliament) are also missing. For the gaps in Dugdale's time, his marginal references should be compared with the last paragraph of hU preface. • 1 1 Anne to 14 George II; 21 George II to 68 George III; 1 George IV to 1880. • R. Lodge, Political Jlittary of England, viii. 283, 286, 282, 2»4. 4 Sir J. Pettiu, The Constitution of the Parliament) in England (1680), p. 20. ' Pailiament Pawns, bundle i, no. 17. This list ia interesting in several other ways : 1921 WRITS OF ASSISTANCE, 1558-1700 359 be seen by an examination of the Pawn for 35 Elizabeth (1593), where the name of Sir William Peryam, who was made chief baron after the writs had been issued for the parliament of that year and had therefore a writ of a later date than the others, ocours in the middle of the list before the names of judges who undoubtedly received the earlier writs.1 Therefore all that can be said is that, though the Pawns may usually have been drawn up when the writs were issued, the fair copy which we possess 2 may quite well have been prepared after the dissolution of

parliament. Downloaded from In form there is only one of the PawnB that presents anything of much interest; this is the one3 for the parliament of 30 Henry VIII (1539). A very large number of the names on it have been scored through and others inserted, and a careful

examination shows that the original list is that belonging to the http://ehr.oxfordjournals.org/ parliament of 1539, and that it has been brought up to date and used again as a rough list for the parliament of 6 Edward VI (1553); from this a fair copy has been made.4 That this is the case can easily be proved. ' Anno trioesimo ' has been altered to ' anno sexto *; Roger Cholmley, who became chief justice of the king's bench in March 1552, has been substituted for Edward Montagu, who was chief justice in 1539; John Baker—attorney- general in 1539—is scored out and Edward Gryffin, who was not at University of Connecticut on July 6, 2015 attorney-general till the following reign, is inserted, and John Gosnold is added as solicitor-general, an office he did not hold till May 1552. The names of the three secretaries of state (Petre, Cecil, and Cheke), who certainly received writs of assistance in 1553, are not, however, inserted in this rough copy, though they appear in the fair one drawn up later. Blackstone, writing of these writs of assistance, says : In the next place they B hare a right to be attended, and constantly are, by the Judges of the court of king's bench and common pleas, and such of the barons of the exchequer as are of the degree of the coif, or have been made Serjeants at law; as likewise by the masters of the court of chancery ; for their advice in point of law, and for the greater dignity of their proceedings. The secretaries of state, the attorney and solicitor general, and the rest of the king's learned counsel being serjeante, were three persons were summoned as solicitor-general daring the coarse of this parliament, Sir Thomas Fleming. Sir John Dodderidge, and Sir Francis Bacon; three as ohief baron of the exchequer, Sir William Peryam, Sir Thomas Fleming, and Sir Lawrenoe Tanfield ; two as chief justice of the king's bench, Sir John Popham and Sir Thomas Fleming; two as chief justice of the common pleas, Sir Edmund Anderson and Sir Francis Qawdy ; while Sir John Croke is summoned both as a serjeant-at-law and as a justice of the king's bench. > Parliament Pawns, bundle i, no. 14. * In two cases both the rough and fair copies have been preserved : the amended Pawn of 1639 which serves as the rough copy for the parliament of 1663 (see below) and the two Pawns (noa. 28 and 29) for the parliament of 1690. ' Parliament Pawns, bundle i, no. 2. * Ibid., no. 5. • i. e. the peer* 360 WRITS OF ASSISTANCE, 1558-1700 July also used to attend the house of peers, and have to this day their regular writs of summons issued out at the beginning of every parliament: but, as many of them have of late years been members of the house of commons, their attendance is fallen into disuse.1 This account is in the main correct, although the evidence supplied by the Parliament Pawns enables us to modify it in some of its details. The persons summoned by writs of assistance may be divided into six classes :a (a) the judges, (6) the master of the rolls, (c) the attorney and solicitor general, (d) the king's Serjeants, (e) the Downloaded from secretaries of state, and (/) occasional members of the privy council. Before these different groups are considered separately, it should be noticed that they all belong to the council of the king—not the privy council, but that wider and very ill-defined body, the ordinary council—that they are all men whose special http://ehr.oxfordjournals.org/ obligation it is to advise the Crown when called upon to do so ; hence, while the peers are summoned to confer with the king and other peers, the members of the ordinary council are called to advise the Crown 3 and are really in attendance upon the king* alone and not upon the peers at all. But with the development of the house, of lords in the fifteenth century these advisers of the Crown gradually fall into a position of subordination to the at University of Connecticut on July 6, 2015 peers, and, by the beginning of Elizabeth's reign, it was pretty well recognized that they were merely attendants or assistants * to the upper house, with no lot or share in the privileges of that body, though occasionally a bill might be sent to a committee on which the justices * or the attorney and solicitor general 9 or'even a serjeant-at-law7 sat side by side with lords of parliament, or even though, as happened in one debate at least, a secretary of state might intervene in the discussion in support of the bill that was before the house.8 These are mere survivals

> Blackatone, Commentaries (ed. of 1706), i. 162. • See also p. 372, n. 2. • See p. 357, n. 1. • D'Ewes nuke* a distinction between ' Assistant ' And ' Attendant* ': the judge* be oalli ' assistants' (e. g. p. 99), the attorney and solicitor general and the Serjeants ' meer Attendants upon the Upper House ' (pp. 09, 142); this may imply a oertain difference in status, but it was a distinction that was certainly not universally made even in the early seventeenth century, e. g. Chief Baron Fleming and Baron Soigg are said to be ' Attendants as Judges in the Higher House' (Commons' Journals, i. 207, 9 November 1604), while a master of the ohancery is called an assistant to this house (Lords' Journals, iv. 666, 7 February 1642). • Lords' Journals, i. 686, 26 January 1663; i. 606, 20 March 1603; D'Ewes, pp. 90, 142, 143, 3 October and 6 October 1666, 6 April and 9 April 1571. • Lords' Journals, i. 686, 2« January 1663 ; D'Ewes, p. 142, 6 April 1671; Lords' Joumals.i. 691, 21 May 1671. ' D'Ewes, p. 99, 3 October 1666. In these cases the bills committed dealt with legal matters. • The debate on the Sacrament on 14-18 December 1648, printed in appendix v of Qasquet and Bishop, Edward VI and the Boot of Common Prayer. 1921 WBIT8 OF ASSISTANCE, 155&-1700 361 which can be looked upon by D'Ewes in the early seventeenth century as quite contrary to the ordinary procedure of his day.1 It should, however, be made clear that this general conclusion applies much more justly to the legal advisers of the Crown than to the secretaries of state, for the latter do not become important until the early sixteenth century, when the peers have already gained some corporate unity. Consequently, when they begin to receive writs of assistance, it is really in order that they may give the upper house information in regard to

the many matters of administrative or diplomatic importance Downloaded from with which they had to deal. For the purpose of examining more in detail the conditions of summons of those six groups of officials who received writs of assistance, and their relations with the lords and the commons,

it will be desirable to consider them separately. http://ehr.oxfordjournals.org/ (a) Throughout the whole of this period (1558-1700) the two chief justices and the chief baron were regularly summoned to attend the house of peers. The judges of the king's bench and the common pleas were also summoned pretty regularly, though it would not be safe to say that they were all summoned to every parliament. The case of the barons of the exchequer is not quite so simple. It had long been the custom for judges of the king's bench and common pleas to become serjeants-at-law at University of Connecticut on July 6, 2015 upon their appointment as judges, if they were not so already ; a the barons of the exchequer did not, however, necessarily do this; indeed, Robert Shute (appointed June 1579) was the first baron to be also a serjeant-at-law.a As the Pawns for the earlier parliaments of Elizabeth's reign do not exist, we cannot say just how early the barons received writs of assistance, but they certainly did not get them before 1558, and as attainment of the degree of the coif seems to be a necessary qualification for summons,* it is probable that the first writ of assistance was sent fo a baron in 1584, and it is certain that two such write were issued to barons of the exchequer (both also serjeants-at- law) in 1586.8 From this time onwards most of the barons attained to the degree of the coif, and there even exist instances where barons who were also Serjeants, were not summoned,6

1 Ii< each case quoted above he cab attention to the fact in a special note, and on p. 99 he says, ' which is a matter to be observed, because of later days neither the said Assistant* nor Attendants are ever appointed joint Committees with the Lords, as here; but only Commanded by the House to attend upon the Committee'. ' This remained the rule until it was abolished by the Judicature Act of 1873. • Foes, Judges, in the life of Robert Shute. • Cf. Coke, Institute*, iv. 4; Blackstone, Comnntaritt, i. 162. » Parliament Pawns, bundle i, no. 12. • e. g. Sir James Altham, who was made a baron of the exchequer in 1607 but was not summoned to the parliament of 1604-11, though Sir Edward Bromley, who was of a later creation, was summoned. 382 WRITS OF ASSISTANCE, 1558-1700 July but probably the reason would be found by a study of the cir- oumstanoes of each individual case. Writs of assistance were regularly sent to the judges of the three common law courts down to the passing of the Judicature Act of 1873 ;1 since that date they have been issued to the judges of the high court of justice and the court of appeal, though in recent years writs have been sent only when the need has arisen for consulting the judges on some legal question, and not as a matter of course at the beginning of every parliament.* In addition to providing the lords with advice on technical Downloaded from legal points, the judges, as was pointed out above, sometimes sat on committees of the lords when law bills were under discussion, or sometimes had bills committed to them for examination,3 though after 1600 the more usual custom was to summon them to attend on the lords' committee ; * they were also sometimes http://ehr.oxfordjournals.org/ oalled upon to draft the amendments the lords proposed to a bill or even the whole bill itself,6 and it was the duty of two of them to carry to the commons all messages relating to bills which concerned the Crown or the royal family—an obligation which survived well into the nineteenth century—and on rare occasions they carried important messages relating to other 8

matters. But on the whole throughout this period the part at University of Connecticut on July 6, 2015 that they play seems to be rapidly decreasing in importance. Lake the peers themselves, the judges were supposed to obtain leave of absence from the house if they desired to go into the country for a few days, but, though this was often done,7 the 1 There is one curious exception: in 1702, according to the Parliament Pawn' only the two chief justices, the chief baron, and the master of the rolls were summoned, yet it looks very much as though this Pawn were inaccurate or unfinished, for on 2 March 1705, in this same parliament, it is ordered that two judges are to stay in town to attend the house of lords (Lords' Journals, xvii. 686). • May, Law and Usage, of Parliament, 12th ed., p. 183. This change of custom was partially anticipated by the Protectorate parliament of 1668 (see below). » e.g.Lords' Journal*, i. 600, 10 May 1871. * See above, p. 361, n. 1. • e. g. in the case of the Statute of Proclamation*, 12 June 1039 (Lords' Journals, i. 118). On 30 June 1685 the judges were ordered to draft aoU for the return of able and sufficient jurors and the mending of highways (ibid. xJv. 60); on 14 November 1689 to prepare a bill for regulating no* obstacles (ibid. xiv. 342); cf. also ibid. xiv. 028, 22 October 1690. • May, Late and Usage of Parliament, pp. 183, 031. A message in regard to Mon- mouth't declaration was borne to the commons by the ohief baron and another baron of the exchequer on 10 June 1680 (Lords' Journals, xiv. 41), and one in regard to the attainder of Monmouth on the same day by two justioes (ibid. xiv. 42), but there if also one carried to the commons by a justice and a baron of the exchequer on 30 June 1680 which is concerned merely with a bill for the continuance of laws (ibid. xiv. 89). Still earlier—in 1661-2—messages in regard to an act dealing with grants of land by the king (ibid, xi. 346), to one for the reversal of Stratford's attainder (ibid. xi. 387), and to a proposed conference on a message from the king (ibid. xi. 356, 19 December 1661) were carried down to the commons by a justice and a baron. ' e.g. Lords' Journals, xi. 07, 8 June 1660; this leave of the house was necessary even if the judge bad to go into the country to assist at tae assites; cf ibid. xiv. 299, 1021 WSIT8 OF ASSISTANCE, 1558-1700 363 judges became more and more remiss in their attendance during the latter half of the seventeenth century. On 14 January 1667 it was resolved ' That the Gentleman Usher attending this House do acquaint the Judges that they attend this House according to their Duty '.* This admonition was repeated on 17 May 1675, when it was ordered ' That some of the Judges do attend this House every Day ',* but this did not produce any very permanent improvement, for on 14 November 1689 it was found necessary to order ' That all the Judges be sent for into

Westm'r Hall presently, and reprimanded for their not attendance Downloaded from daily in the House. Who being come ; the Speaker acquainted them, that the Lords expected their daily attendance.' s But still their duty to the Lords called with so small a voioe that on 19 November 1690 the gentleman usher of the black rod had 4 to be sent to command their immediate attendance. This does http://ehr.oxfordjournals.org/ not seem to have met with unqualified success, for three years later the Lords moderated their demands and suggested that it would be enough if, in term time, only one judge from each court in Westminster Hall attended.8 This was the lull before the storm ; on 9 February 1694 the lord keeper pointed out to the judges the path of duty in language that admitted of no misunderstanding : at University of Connecticut on July 6, 2015 I am commanded by the House, to tell you, you have the Honour to be the Assistants here; and the House takes Notice of your great Negli- gence in your Attendance : you have had sometimes Warning given you, though not with so much Solemnity as I am directed now to do it. If this Fault be not amended for the future, the House will proceed with greater severity against you.8 Yet so little real effect does this solemn warning seem to have had, that it had to be repeated less than a year later,7 and during the eighteenth century the attendance of the judges became more and more spasmodic. For a seat in the commons the judges were not eligible because, as Coke quite definitely states, ' they be assistants in the Lords House \8 and though Foss declares that so highly did the commons esteem the integrity of Sir Thomas Fleming that thej permitted him to retain his seat after his elevation to the bench in 1604,9 the Commons' Journals, though not free from ambiguity, do not confirm this.10

80 July 1680. And daring the course of Stratford's trial Baron Henden was refused leave of absenoe to hold a court in the Cinque Porto (ibid. iv. 213). 1 Lords' Journals, xii. 74. • Ibid., p. 695. * Ibid. xlv. 342. • Ibid,, p. 668. . • 25 November 1693, ibid. xv. 307. • Ibid., p. 364. ' 4 December 1694, ibid,, p. 438. • Coke, Institutes, iv. 47-8. • Foss, Jttdgts, in the life of Sir Thomas Fleming. " ' (,'. Touching Lord Chief Baron, Burgess for South, and Baron Snigg for 364 WRITS OF ASSISTANCE, 1558-1700 July (6) The master of the rolls has been fairly regularly1 summoned down to the present day, though the Judicature Act of 1873 abolished the one important feature in this connexion that distinguished him from the other judges,2 bis eligibility for a seat in the house of commons.3 (c) Throughout the whole of this period and, indeed, down to the present time writs of assistance have been sent with the greatest regularity to the attorney and solicitor general.4 Like the judges, they sometimes gave advice on legal questions, occasionally sat on committees with members of the upper Downloaded from house,6 and very frequently carried bills and messages from the lords to the commons;8 in fact this hist function seems to become in the seventeenth century the main reason for their attendance on the upper house; like the judges, too, the attorney- general was supposed to ask leave of the house if he desired to http://ehr.oxfordjournals.org/ absent himself, even though it were but to go down to the house

Bristowe, being Attendants w Judges in the Higher House, whether they shall be recalled. 3«solved, They shall not' (Common*' Journals, i. 207, 0 November 1606). There is no new writ for Southampton (for which borough Sir Thomas Fleming sat) given in the parliamentary return*, but this proves very little, as these returns are by no means oomplete ; bat in the oase of Baron Snigg, to whom the commons' ambiguous resolution equally applied, there is a fresh return for his seat at Bristol, proving that he vacated it on his appointment. This looks as though the resolution meant that both Fleming and Snigg were disqualified from sitting in the commons. at University of Connecticut on July 6, 2015 1 e. g. in December 1090 Powle, master of the rolls, petitioned the lords for a writ of assistance (Lord*' Journal*, ziv. 578); the petition was referred to the committee for privileges, who reported that according to the Pawns in the Petty Bag Office the master - of the rolls had been summoned to most'of the parliaments since 36 Henry Viil (ibid. 683). * e. g. bills were sometimes committed to the master of the rolls just as they were to the judges. Cf. Bi*t. MSS. Comm., Report on Record* of City of Extitr, p. 81. 1 May, Law and Usage of Parliament, p. 29. This eligibility had not been a dead, letter; for example, Sir Julius Caesar sat in the commons after his appointment aa master of the rolls, while Sir William Cordell, master of the rolls, was elected Speaker in the parliament of 1668 (4 ft 6 Philip and Mary) and Sir Harbottle Grimstone was appointed master of the rolls in November 1660 during bis tenure of the office,of Speaker. * The attorney-general was summoned in 1629 and 1639, the solicitor-general being omitted, but after that they are both summoned regularly till 1702 (with the exception of the parliament of 1601-79, when the solicitor is omitted from the list); neither appears in the Pawns for 1702 and 1708, but thence onwards they are once more regularly summoned. * See above, p. 360, n. 5. * e.g. Lord*' Journal*, i. 118, 14 June 1639; i. 648, 11 February 1559; i. 693, 22 May 1671 ; iii. 74, 27 March 1621; iii. 130, 24 May 1621 ; iii. 327, 28 April 1624. Bills or messages were always borne by two attendants from the lords to the commons ; sometimes it was the attorney and solicitor general who took them, sometime* the attorney or solicitor and a serjeant-at-law or a master in chancery; sometimes two Serjeants, two masters, or a Serjeant and a master ; and once aa late as 28 June 1686 the clerk of the Crown was pressed into service (Lords' Journal*, xiv. 61). On one occasion (31 August 1641) the lords sent a message by a single bearer, a master in chanoery called Dr. Bennett. The commons were properly (n^ign«jit at this breach of etiquette, but the lords explained the matter by ^'"g^g that there were no more attendants present in the house (Lord*' Journal*, iv. 387). 1921 WRITS OF ASSISTANCE, 1558-1700 365 of commons, of which, after 1660, he might be a member.1 But from 1600 to 1660 there was one very important difference between these two official : while not a word was said to imply that the solicitor-general ought not to sit in the house of commons, the attorney-general, ' by special order of the House of Commons . . . is not eligible to be a member '.* The question first arose in the case of Sir Henry Hobart, the member for Norwich, who was appointed attorney-general in July 1606; when parliament reassembled in November, it at once began to discuss with

considerable vigour whether Hobart should retain his seat or Downloaded from not : ' The House upon this grew to Division, and by Division to Confusion ; for they were not numbered.' Ultimately it was decided that the matter should be dropped, and Hobart therefore retained his seat.3 Exactly the same difficulty arose in the

parliament of 1614 ; Sir Francis Bacon had become attorney- http://ehr.oxfordjournals.org/ general in October 1613, but he allowed himself to be elected for Cambridge University in the following year. Once again the commons discussed the matter, and, though Bacon was allowed to retain his seat, an order was passed making the attorney-general ineligible for the future ; * consequently, when Sir Thomas Coventry was made attorney-general five days before the opening of the parliament of 1621, he was ordered to 6 vacate his seat, as were also Heath in 1626 and Herbert in 1641. at University of Connecticut on July 6, 2015 After the Restoration, however, this order seems to have lapsed, and Sir Heneage Finoh and his successors appear to have sat in the house of commons without any question being raised. Why this objection was taken to the attorney-general it is difficult to say, but, if Coke is to be trusted, neither the attorney nor the solicitor nor even the Serjeants were welcomed in the lower house, for he says : * Further he wished that none of the King's learned counsel should be of the lower house for two respects: one, that their presence there was not well taken; the other, that there was great use of them above in the higher house.* It was probably the latter reason that influenced the commons, and, if we may judge by an incident in 1589, there was some

1 e.g. 27 June 1661 (Lord* Journals, xL 290); 24 November 1080 (ibid. xiiU where he is allowed to go down to the commons ' (or this Morning only'. 1 Coke, Institutes, iv. 47-8. ' Commons' Journals, i. 324, 22 November 1606. ' Ibid. i. 459, 11 April 1614. Though the order passed is not mentioned here, its existence can be seen from the reference to it on 8 February 1621 (ibid., p. 513). ' Ibid., pp. 613, 817 ; ii. 75. * From Coke's opinion given in the meeting of the privy council called to consider the preparations necessary for the proposed parliament of 1615. Printed in Spedding, Life and Letters of Bacon, v. 200. 366 WRITS OF ASSISTANCE, 1558-1700 July justice in their attitude. Certain members of the commons who had been sent to the lords on another matter had also Order to desire of their Lordships in the name of the said House, that Mr. Solicitor being returned a Member thereof might be suffered to come thither and give his attendance in the same. To which desire of theirs their Lordships a little after sent down word by Mr. Serjeant Puckering and Mr. Attorney General to the said House, that the said Mr. Sollicitor was called by her Majesties Writ to nerve in the Upper House long before he was chosen a Member of the said House of Commons, and therefore thought it very fitting he should still continue his attendance Downloaded from in the said Upper House.1 It may be possible that the fact that the solicitor was eligible, while the attorney was not, represented a compromise by which the services of one law officer were more or less secured to each house, just as was suggested in the case of the two secretaries http://ehr.oxfordjournals.org/ in 1540,2 or it may have been the result merely of the commons' jealousy of a royal official. (d) The whole body of serjeants-at-law had never received writs of assistance, which had always been confined to the small inner group of king's sergeants ; 3 this was dnly to be expected, for it waB the king's Serjeants alone, and not the whole body, that had any special obligation to serve the Crown in legal at University of Connecticut on July 6, 2015 matters. They were summoned quite regularly down to 1685, but, if the Parliament Pawns are to be relied upon, no writs of assistance were issued to Serjeants from 1685 to 1710 inclusive.* There is no such gap as this anywhere else, and there seems to

1 D'Ewes, p. 424, 3 March 1589 ; cf. also p. 441. In 1666 the commons had asked that ' Mr. P,ic. Onaelowe Esquire, Solicitor ficnernl to the Queen's Majesty . . . might be restored to join in their Election [of a Speaker] as Burgess for the Borough of Stening in Sussex '. The lords sent him down to the commons to explain for himself why he ought not to be regarded as a member, but he failed to convince them, and was at once elected as the new Speaker. Here the disinclination seems to come from the solicitor-general himself, not from the lords (Common*' Journals, 1. 73, 1 October 1566). In January 1581 ' Mr. Treasurer declared unto the House before their proceeding to Election, that he and others had erst seen in the Higher House one that is a Member of this House, to wit, Mr. John Fopham, her Majesty's Solicitor General, being One of the Citizens for Bristowe'. The commons considered the precedent of Mr. Onalow quoted above and decided to ask the lords to restore Popham to them ; this the lords did, on the ground ' that he was a Member of this House [i. e. the commons], and this House possessed of him, before he was Solicitor, or had any Place of Attendance in the Higher House'. . He was then elected Speaker (Common*' Journals, i. 117; iyEwes, pp. 280-1). Sir Edward Coke, who held tho office of solicitor-general from 1692 to 1696, was elected Speaker in the parliament of 1503, bilt D'Ewes says nothing of the attitude taken up by the lords on this occasion (D'Ewes, p. 469). * See below, p. 368. * All the king's serjnants seem to have been summoned, but, of course, as soon as they were raised to the bench they were summoned in the higher capacity, just as was a judge who happened also to be a peer. * Parliament Pawns, bundle i, nos. 25-33; ii, nos. 1-4. 1921 WRITS OF ASSISTANCE, 1558-1700 367 be no good reason to account for it, for, when the writs of summons to Serjeants are resumed in 1713, they are issued with great regularity right down to the death of the last king's serjeant in 1866. Their duties in the house of lords were at first very similar to those of the attorney or solicitor general,1 and like the latter they were always eligible for election to the house of commons ;2 but towards the end of the sixteenth century and throughout the seventeenth, they seem to do little more than carry bills and messages from the upper house to the lower.3 (e) In 1539 was passed an act for the placing of the lords in Downloaded from their due order of precedence when they were sitting in parliament, which lays it down that if the secretary and certain other officers of state shalbe under the degree of a Baron of the Parliament, by reason wherof

they can have noe interest to give any assent or dissent in the saide http://ehr.oxfordjournals.org/ House, that then in everie such case suche of them as shall happen to be under the saide degree of a Baron, shall sitt and be placed at the uppermost parte of the sakkes in the middes of the saide Parliament Chamber, eyther there to sytt uppon one fourme or uppon the uppermost sakk, the one of them above the other in order as is above rehersed.4 This seems to be the first suggestion that the secretary should sit regularly in the house of lords, and in 1545 Paget and Petre 6 received writs of assistance for the parliament of that year; at University of Connecticut on July 6, 2015 and, if the Parliament Pawns are accurate, from that date till 1679 all but one of the secretaries of state who were not peers received writs of assistance.8 There is no evidence, however, in the Pawns that these writs continued to be issued down to 1768 as Blackstone declared, and it is probable they ceased simply because, from 1679, one of the secretaries was almost always a peer and could therefore explain all that the upper house

1 They even sometimes utont committee to whioh a bill had been sent by the lords ; e. g. 3 October 1666 (D'Ewes, p. 99). * The serjeanU-at-law played a very considerable part in the house of commons; for example, eighteen Speakers between 1829 and 1640 inclusive were aerjeants-at- law, and of these at least live were king's Serjeants. It is important to notice that the Speaker in the sixteenth and seventeenth centuries was almost invariably a man learned in the law, and he very frequently attained afterwards to high judicial office. • LordS Journals, i. 613, 5 April 1663; iii. 74. 27 March 1621; iii. 188, 10 December 1621 ; iii. 339 (mispaged 329), 4 May 1624. • 31 Henry VIII, c. 10, sec 8. The fact that the judges and other attendants of the lords are not mentioned in this act cannot be held to imply anything as to their position, for the act did not set out to name the attendants of the lords, but merely do settle the precedence of certain officers of state. ' Parliament Pawns, bundle i, no. 3. There is no Pawn for the parliament of 1642, so we cannot tell if the secretaries were summoned in that year or not. * Of course it must be remembered that there are considerable gaps in the series of Pawns between 1646 and 1679 (see above); the name of Morice, the colleague of Sir Edward Nicholas, does not occur on the Pawn for 1661. 368 WRIT8 OF ASSISTANCE, 1558-1700 July might want to know, without the necessity for calling upon his colleague to be present. But it was very doubtful if the secretaries sat in the upper house as of right in consequence of the act of 1539, for this merely settled their position if they should happen to be there, and did not make it imperative for them to be summoned. That this was the view taken by the lawyers in 1640 is shown by the report of a reading given by a certain Mr. Jones at Lincoln's Inn in that year in which it was questioned what honor was due to the Secretaries of State by Downloaded from Righte or favour as also whether they have any place de iure in the Upper House of Parlement; and that our Mr. Babor and Mr. Tailer undertook it, who concluded that they had no place in the Upper House unless made Bartons or cawled by writt.1

The secretaries were summoned to the upper house, as Sir Thomas http://ehr.oxfordjournals.org/ Smith says, ' to aunswere of such letters or thinges passed in counsell whereof they have the custodie and knowledge ' ;a but this was a function that had to be performed in the house of commons also, and it was probably for this reason that Henry VIII, when he appointed Sadler and Wriothesley secretaries of state in 1540, ordered that they were to retain their seats in the house of commons, sitting one in each house, alternately, by weeks.* This system does not seem to have lasted long, for it would be at University of Connecticut on July 6, 2015 impossible during the greater part of Elizabeth's reign, when there was only one secretary, and in later years the secretaries who were not peers gave far the greater share of their attention to the commons. So far as one can judge from the Journals of the House of Lords, the secretaries who were summoned as attendants must have played the very smallest of parts in the upper house, if they ever attended at all. On one occasion, certainly, the secretary took part in the debate,4 but this was not repeated. (/) The fact that occasionally during the seventeenth oentury certain members of the privy council received writs of assistance presents an exceedingly difficult problem for solution, because there seems to be no definite rule which can be laid down as to when a privy councillor was summoned to attend the house of lords and when he was not. Historically, of course, the king could summon, if he pleased, any member of the council to be present in the upper house, because there the king was in his council in parliament; but in practice the Crown seems rarely to have exercised this right in the last four centuries, though the standing orders of the house of lords still speak of ' the

1 State Papers, Domestic, Charles I, ccccxlvi. 25, 26 February Id40. • 8ir Thomas Smith, De Republica An^orum, ed. by L. Alston, p. 81. • Stowe M8S. 141, fo. 78. • In 1643. See above, p. 360, n. 8. 1921 WRITS OF ASSISTANCE, 155&-1700 369 Judges and such of his Majesty's Privy Council as are called by writ to attend '} The cases when suoh summonses were issued are, in fact, so interesting in themselves that it is worth while quoting them in full. In 1624 writs of assistance were sent to Oliver Viscount Grandison (late lord deputy of Ireland), Robert Chichester of Belfast (late lord deputy of Ireland), Sir John Suckling (controller of the household), Sir Thomas Edmonds (treasurer of the household), and Sir Richard Weston (chancellor of the exchequer).2 In 1625 writs were sent to four of the live privy councillors who had been summoned in 1624,* Downloaded from and, in addition, to Sir Robert Naunton (master of the court of wards), and to Sir Humphrey May (chancellor of the duchy of Lancaster).4 In 1640 Charles Viscount Wilmot and Lord New- burgh (chancellor of the duchy) were summoned ; s and finally, in 1685, Alexander Earl Murray and John Viscount Melfort (the Scottish secretaries of state) received writs of assistance dated http://ehr.oxfordjournals.org/ two days after the opening of parliament.6 There is at once a temptation to say that these are privy councillors who had no seats in the house of commons and are therefore summoned to the lords, as Clarendon suggested had always been the custom ;7 but this is not the case. Indeed, every one of those privy councillors who were summoned in this way in 1624 and 1625, with the exception of Grandison and at University of Connecticut on July 6, 2015 Chichester, sat in the house of commons also. And not only are these not instances that can be used to illustrate Clarendon's so-called ' custom ', but there seems no good evidence that such a custom ever existed. In the first place, we have examined the careers of all the privy councillors between the years 1568 and 1660, and, with very few exceptions, each one of them sat in every house of commons that met between the date of his appointment to the council board and his death or promotion to the upper house, cither as a peer or as a legal assistant; and even some of those few exceptions are explicable when the individual circum- stances of the case are considered. Indeed, it may be said that it was looked on as part of the privy councillor's duty to sit in the commons on every possible occasion, so that Sir Henry Vane the elder was not exaggerating when he wrote of ' that burgee

> Standing Order vi. • Parliament Pawni, bundle i, no. 18. Robert Chioheater should, of course, be Arthur Chicheater; he had been made Lord Chicheater of Belfast in February 1618. We are much indebted to Mr. Jenkinson of the Record Office for aaaUtanoe in decipher, ing Chiohester's name, for the Pawn U so stained in places as to be almost illegible. ' Chichester had died on 10 February 1626 (Diet, of Nat. Biog.). ' Parliament Pawns, bundle i, no. 10. • Ibid., no. 20. The second name is almost certainly Newburgh, but the Pawn is much discoloured. • Ibid., no. 26. ' See above, p. 356. VOL. XXXVI.—NO. OXLIII. B b 370 WRITS OF ASSISTANCE, 1558-1700 July place which he, as a pryvy counsellor, would not bee destytute of '.x Furthermore, with the possible exception of the cases mentioned above of Grandison and Chichester in 1624r-5 and Newburgh in 1640, we have found no record to show that any privy councillor was ever summoned as an assistant to the house of lords because he had no seat in the house of commons. There- fore, the truth of Clarendon's statement as to what the custom was must be denied. Consequently we are driven back upon pure conjecture to

account for the occasional presence in the lords of these members Downloaded from of the privy council, and the only thing that seems at all likely is that the cases in 1624-5 are part and parcel of the early Stuart policy of exalting the household and minor officials at the expense of the greater nobles. Why the Scottish secretaries of state were

summoned in 1685 is still less plain, for there seems to have http://ehr.oxfordjournals.org/ been nothing of particular importance to Scotland transacted in this parliament. No account of the attendants on the peers would be complete, if mention were not made of the masters of the court of chancery. They do not appear on the Parliament Pawns, and therefore, presumably, did not receive writs of assistance, and, though they sat on the woolsack,1 they appear to have been distinctly sub- ordinate in status to the other officials who attended the upper at University of Connecticut on July 6, 2015 house. Their duties in this connexion consisted in carrying messages and bills from the lords to the commons,8 and they never seem to have been consulted by the lords on matters of law, as were the other legal assistants. Moreover, the lords were prepared to insist upon their right of being constantly attended by some of these masters of chancery : not only did they have to get leave of the house if they desired to go into the country,4 but on one occasion at least the gentleman usher is required to take into custody one of the masters ' for his Neglect of his attending this House '; s and on another occasion the commissioners of the Great Seal are requested to take measures that the house may be daily attended by some ot the masters of chancery.8 They seem in fact to have occupied a position half-way between that of the sixteenth-century attendants as

1 From a note by Sir Roger Twysden about Vane's efforts to get elected to the Short Parliament from Kent, printed in Proceedings in Kent in 1640 (Camden Soc.), p. 6. * See the seventeenth-oentury picture of the house of lords that serves as a frontis- pieoe to iyEwea. • e. g. Lori*' Journals, i. 648, 11 February 1569; i. 692-3, 22 May 1671 ; i. 740, 2 March 1675; iii. 130, 24 May 1621 ; iii. 327, 29 April 1624 ; iii. 339, 4 May 1624 ; iv. 387, 31 August 1641. • e. g. ibid. v. 212,16 July 1642; v. 214, 16 July 1642; of course the peers and the judges were also supposed to do this (ese above). * Ibid. v. 289, 15 August 1642. • Ibid. ix. 543, 26 November 1647. 1921 WRITS OF ASSISTANCE, 155&-1700 371 exemplified by the judges, and that of the persons whom we should call attendants at the present day.1 Hitherto we have dealt with writs of assistance that were issued by the Crown, but there are also two very interesting Pawns in this collection giving the writs that were Bent out in 1658 and 1659 respectively, and the names of the persons to whom they were sent. As was pointed out above, they are in English, and are warrants for the preparation of the writs and not enrolments of them. Moreover, the senior assistant summoned is not, as was normally the case, the chief justice of Downloaded from the king's bench ; in the Pawn for 1658 he was William Lenthall, master of the rolls, though he, as well as the chief justices of the king's bench and common pleas, was a peer in his own right. In 1659 the senior assistant was Sir Thomas Widdrington, chief baron of the exchequer. To the parliament of 1658 there were http://ehr.oxfordjournals.org/ also summoned as assistants, two justices of the king's bench, three justices of the common pleas, three barons of the exchequer, and one serjeant-at-law; to that of 1659, two justices of the king's bench, two justices of the common pleas, and three barons of the exchequer.8 The attorney and solicitor general and the seoretary were omitted on each occasion. In these two parliaments the lords made vigorous efforts to

follow in full the precedents set by their more legitimate pre- at University of Connecticut on July 6, 2015 decessors. The judges were called upon to assist at the lords' committees ; 8 judges were entrusted with the drafting of a bill; * sometimes bis highness's serjeant-at-law was to prepare the bill and two judges to peruse it and report it to the house ; 8 messages were sent down to the commons by two judges,9 for there appear to have been no masters of chancery in attendance ; sometimes the judges asked the house for leave of absence,7 and sometimes they seemed to 'stay away without troubling to consult the house.8 In a way the whole procedure is an interesting com- mentary on the desire that was being felt to restore not merely the realities of the old constitution but even its ceremonial.

1 Occasionally in the Lords' Journals the term ' assistant' is used merely in the sense of one who ia present, and not with any technical meaning; for instance, Mr. Henry Barker, deputy to the clerk of the Crown in chancery, waa ' admitted to ait in this Houae as an Assistant' on 26 April 1660 (Lords' Journals, xL S). 1 See these Pawns at the bottom of bundle i. • //owe of Lords' Papers (HitU MSS. Comm.), 1699-1702, pp. 527, 629, 630, &o. (this Is an appendix containing the journals of the bouse of lords for 1668 and 1659). 4 e. g. Mr. Baron Hill was to draft the bill for disannulling and disclaiming the pretended title of Charles Stuart (ibid., p. 531). » Hid., p. 630. • Hid., pp. 511, 624. ' e. g. 5 March 1659 (ibid., p. 545). * The attendance of the judges during term time was dispensed with, unleu they were sent for (25 January 1658; ibid., p. 614), bnt on 30 Maroh 1659 the daily attendance both of members and assistants was ordered (ibid., p. 654). Bb2 372 WRITS OF ASSISTANCE, 1558-1700 July In conclusion it is necessary to utter a warning : for the eighteenth and nine'tecnth centuries the Parliament Pawns are practically complete and therefore statements based upon them can be regarded as accurate, but in the series that covers the sixteenth and seventeenth centuries there are serious gaps; these gaps render any general statements in regard to those centuries of considerably lees value than would otherwise have been the case, and unless they are based on other evidence they must always be read with this qualification in mind, though of course, if the same procedure is followed for some time before and for some time after the period for which no Pawns survive, Downloaded from it is fairly safe to assume that it was followed during that period also. Moreover, these Pawns sometimes look as though they had been rather hurriedly prepared, and therefore little stress can be laid on occasional omissions of an official who was otherwise regularly summoned.1 But though all this must be borne in http://ehr.oxfordjournals.org/ mind, it still is, we think, possible to deduce from these Pawns some general rules in regard to the summons of assistants to the 2 house of lords. E. R. ADAIB. F. M. GEEIE EVANS.

1 For example, no. 30 in bundle i ia obviously unfinished, for the list of assistant breaks off in the middle of a name. Seo also above, p. 362, n. 1. 1 After this article had gone to press our attention was drawn to a small book, at University of Connecticut on July 6, 2015 Sir John Pettug, Tht Constitution of tht Parliaments in England (1680), which enume- rates, from the Pawn for the parliament of 1661-79, the various classes of persons who were summoned to the lord*, and then discusses the reasons for their summons, ch. xiii (pp. 290-370) being devoted to the assistants. On the whole its statements agree with the conclusions that we have come to, and where we differ from them we feel that we do BO on good grounds. On one matter, however, Pettus proves useful, for he points out that a lord keeper or a lord ohancellor who was not a peer was summoned to the house of lords by a writ of assistance. This is confirmed by the Parliament Pawns : to the parliament of 1629 Sir Thomas More apparently received no writ of any description ; we have no evidence about Sir Thomas Andley in 1036 or Sir Nicholas Bacon from 1658 to 1679, but Sir Thomas Bromley was called to the parliament of 1586 by a writ of assistance precisely similar to that sent to the judges except for the fact that he was addressed as' Predilecto 'instead of merely' Dileoto*. Sir Christopher - Hatton (for the parliament of 1588), Sir John Puckering (for that of 1S93), and Sir Thomas Egerton (for those of 1697, 1601, and 1604) were all summoned by similar writs of assistance. For the parliament of 1624 Lord Keeper Williams received not only a writ of awi stance but also a peer's writ as bishop of Lincoln, and thin was repeated in 1636. In 1640 Sir John Finch was sent a writ of assistance for the Long Parliament, and in 1661 Hyde received both the writ of assistance and the peer's writ, a very curious case, though parallel to that of Williams in 1624-6. Arguing from Hyde's double summons, Pettus lays down the theory that if the lord chancellor or lord keeper * be a Baron ... he hath or may require a Baronial Writ besides this Assisting Writ' (pp. 216-16); for this theory there seems no sufficient foundation. For the parliament of 1696 Sir John Somere received a writ of assistance, as did Sir Nathan Wright for those of February 1701 and 1707, bnt for the parliament of December 1701 and for that of 1702 he was sent a peer's writ, though he was of course not a peer: another example, probably, of the careless ways the petty bag office was falling into at the beginning of the eighteenth century. Apparently the last lord keeper or lord chancellor to receive this writ of assistance was Sir Simon Harcourt in 1710.