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Writs of Assistance, 1558-1700

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356 July Writs of Assistance, 1558-1700 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 parlia- ments 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.
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