HOWARD, Henry (1655-1701)

Early Years

Howard was brought up as a Catholic and travelled extensively in his father’s entourage. On 29 June 1664 his father was granted a pass to travel with his two sons to Flanders, France and Italy. Howard and his brother returned to England in May 1667, and stayed at Arundel House where in October they witnessed some proceedings of the Royal Society. Evelyn Diary, iii. 482; Boyle Corresp. ed. Hunter, iii. 346, 368. In 1669 he studied at Magdalen, Oxford, but did not matriculate. Evelyn Diary, iii. 535. He went abroad again but was reported to have returned to England in December 1670. In July 1672 it was reported that Howard and his father were serving as volunteers under James Stuart, duke of York. CSP Ven. 1671-2, p. 247.

As Howard was the heir of his father, and thus to the extensive Howard patrimony, he was an eligible marriage prospect. In October 1672 it was reported that his father was hoping to cement an alliance with the court through a marriage between Howard and Lady Charlotte Fitzroy, illegitimate daughter of Charles II with the duchess of Cleveland, a project his father confirmed to Evelyn later that month. CSP Dom. 1672-3, p. 29; HMC Hastings, ii. 162-3; Evelyn Diary, iii. 592. In February 1673 Howard was presumably the son of Lord Howard, who was rumoured as a possible candidate in the Norfolk county by-election.

Marriage was again mentioned on 24 Apr. 1676, when Robert Paston, Viscount (later earl of) Yarmouth, asked ‘how the match goes on with my Lord Howard’. ‘The Whirlpool of Misadventures’. Letters of Robert Paston, first earl of Yarmouth ed. Agnew (Norf. Rec. Soc. lxxvi), 220. This inquiry probably related to a match with Lady Henrietta Wentworth, which was reported on 12 June to be ‘at a stand at present’. On 13 July Howard’s father referred to ‘being close to settling the marriage of his eldest son’ but in August, Arthur Annesley, earl of Anglesey, reported that negotiations had been ‘broken off’. The following year another match was being discussed, but in July 1677 it was reported that there was ‘a great stop’ put to the match between Howard and Lady Mary Mordaunt, although it had been ‘thought matters had been fully agreed on.’ Verney ms mic. M636/29, Sir R. to E. Verney, 12 June 1676 and 19 July 1677; UNL, Pw1/148; Essex Pprs. 1675-7 (Cam. Soc. Ser. 3, xxiv), 72. Under pressure from his father, who threatened to leave his estates elsewhere, Howard somewhat reluctantly married Lady Mary, whose father, Peterborough, was closely allied to York. Arundel Castle, autograph letters 1632-1723, f. 430, G 1/96, 97.

1678-85

On 14 Jan. 1678 a warrant was issued for Howard, now styled Lord Arundel, to be summoned in his father’s barony of Mowbray. CSP Dom. 1677-8, p. 574. Arundel took his seat on 28 Jan. but his arrival in the Lords was somewhat marred by a dispute about his precedency, which was ‘something disputed’ by James Tuchet, 13th Baron Audley (and 3rd earl of Castlehaven [I]). After a long debate it was agreed that he should be placed at the upper end of the barons’ bench, following the example of his grandfather who had been similarly summoned by a writ in acceleration as Mowbray in 1640. HMC 12 Rep. IX, 67; Add. 33278 f. 52. He was then introduced by his uncle, William Howard, Viscount Stafford and another kinsman, Thomas Howard, 2nd Baron Howard of Escrick. Presumably he had been summoned in the expectation that he would bolster the court interest led by Thomas Osborne, earl of Danby. Several years later, a passing reference to the ennoblement of Richard Lumley, 2nd Viscount Lumley [I] (later earl of Scarbrough), suggested that Danby believed that Arundel was ‘called immediately after his conversion’, but this would appear to be incorrect. Add. 28049, f. 132. Following his elevation to the Lords, Anthony Ashley Cooper, earl of Shaftesbury, added Arundel’s name to his analysis of lay peers, classing him as both ‘worthy’ and a papist. Arundel was present on 43 days of the remainder of the session, 72 per cent of the total and was named to three committees in early February 1678, although he was excused attendance on 16 February. On 4 Apr. he voted Philip Herbert, 7th earl of Pembroke, guilty of manslaughter. He was present on 13 May when Parliament was prorogued.

Arundel was present on 23 May, the opening day of the session of May-July 1678, attending on 21 days of the session, nearly 49 per cent of the total, and was named to six committees. He was present when the new Parliament met on 21 Oct. 1678 and was named to the three sessional committees on 21 and 23 October. He attended on 28 days of the session, which represented nearly 78 per cent of the total, before his decision to withdraw from the House under the Test Act on 30 Nov. 1678. In the election of February 1679 he was instrumental in securing the return for Castle Rising of his cousin, Sir Robert Howard^‡, an enemy of Danby. Despite this, Danby listed Arundel was a possible supporter and assigned Peregrine Bertie^‡ to lobby him. Two more lists drawn up by Danby indicate his belief that Arundel would vote for him, while a third adds him to the list, which probably meant that he hoped to secure his support later. Browning, Danby, iii. 150. It also suggests that Danby thought his return to the Lords possible. In this he was correct. A month after the new Parliament convened Arundel signalled his conversion to the Anglican Church by taking the sacrament. Luttrell, Brief Relation, i. 9; Morrice, Ent’ring Bk, ii. 127. He returned to the House on 11 Apr. 1679, taking the oaths in the only business of the House that day before the peers decamped to the Abbey to keep a fast day. He was present on 31 days of the remainder of the session, nearly 51 per cent of the total. On 27 May he probably voted for the right of the bishops to stay in the House during capital cases.

Arundel’s decision to conform had long seemed a possibility. In 1671, when his father had prevaricated about turning Protestant, he had told Evelyn that ‘he would have his son Harry go to Church’. Evelyn Diary, iii. 595-6. William Legge, earl of Dartmouth, later picked this up, relating that his father, George Legge, Baron Legge, had encouraged Howard to turn Protestant. Burnet, iii. 275. Conformity was a sensible family strategy in uncertain times, especially as some of the Popish Plot informers had linked his father to the murder of Edmund Berry Godfrey and to the plot in general. It may also have been influenced by a desire to defend his inheritance. Arundel clearly resented his father’s second marriage to the somewhat disreputable Jane Bickerton, especially as his father’s plans to provide financially for his second family were eating into his own inheritance. It was to this that Yarmouth was referring on 20 May 1678 when he asked if ‘there were any accommodation between’ the duke and Arundel and his younger brothers. Agnew, 341. The family quarrel resulted in the introduction on 2 May 1679 of a bill for vesting some of the lands of Norfolk and Arundel in trustees, for the payment of debts and annuities charged on their estate, raising a portion for Lady Frances Howard (Arundel’s full sister), for the rebuilding of Norfolk House, and for continuing the residue of the lands (after the trusts had been performed) with the dukedom of Norfolk. As the bill affected Norfolk’s interests, the House also ordered that Arundel take care that his father, who was abroad, had a copy of the bill and demanded proof that this had been done. On 15 May the bill received a second reading and was committed. The family estates according to Arundel had been ‘much impaired’ by his father’s attempts to raise ‘a great estate’ for his new duchess and their children. Arundel’s bill was backed by an impressive list of Howard peers (Charles Howard, 3rd earl of Nottingham, James Howard, 3rd earl of Suffolk, Thomas Howard, 3rd earl of Berkshire, Edward Howard, Viscount Morpeth, the future 2nd earl of Carlisle, William Howard, 3rd Baron Howard of Escrick) and on 16 May 1679 the Lords gave permission for Arundel’s Catholic uncles Edward and Bernard Howard to come to London in order to take care of their interests in the bill. Although Arundel tried to convince the House that his father agreed to the terms of the bill, the peers were soon disabused of this belief when they received a thundering letter of opposition to this ‘most false and scandalous bill’ which was required ‘merely because the writer does not die as soon as his son and his governors would have him.’ Norfolk’s letter was read to the House on 20 May and referred to the committee on the bill, who were ordered to send for Henry Keymour, the servant who had waited on Norfolk in Flanders. On 24 May counsel for the duke asked for more time to answer, and on 26 May the House ordered that Norfolk have a fortnight after receiving notice to appear himself to offer his reasons against the bill or to empower some person to do it for him. The matter was thus unresolved when Parliament was adjourned the following day and prorogued on 12 July. HMC Lords, i. 137-141; Add. 27447, ff. 408-9.

Presumably as a result of this failed legislation, Arundel resorted to a chancery suit against his father concerning the development of the family’s estate in London. Duke of Norfolk’s Deeds at Arundel Castle. Catalogue 2 ed. H. Warne, 56. As Peterborough wrote in October 1679, Arundel was ‘very far from thinking to grieve or molest his father in anything’, but wished ‘to secure what he can, in way of reversion to his family and whilst his pretences are no more unjustifiable I believe his friends will stand by him all they can’. Peterborough wished for a ‘good agreement’, that the duchess and her children ‘might be fittingly provided for’, and the duke return to a ‘natural love of his eldest son, and a fast consideration of his family, and its interests’. Belvoir Castle, Rutland mss QZ3, orig. letters vol. ii. f. 4. In 1680 Arundel and his father came to an agreement to end the suits between them. Norf. RO, Howard (Castle Rising) mss HOW 182. On 23 Nov. 1680 the two men created a debt trust, in which Francis Howard, the future 5th Baron Howard of Effingham, (Sir) Paul Rycaut and Cuthbert Browne, a Yorkshire clergyman, became trustees for lands in Norfolk, Suffolk, Essex and Yorkshire. A draft conveyance exists dated a day later conveying the Strand estate to the same trustees. Many accounts exist of the operation of this trust. F.W. Steer, Arundel Castle Archives, ii. 36, 70, 129-31. After the death of his father Arundel came into conflict with his trustees, who felt that continued progress in reducing the late duke’s debts should take priority over the new duke’s need for liquidity. S. Anderson, English Consul in Turkey. Paul Rycaut at Smyrna, 1667-78, p. 261. In 1693 the surviving trustee, Rycaut, a friend of the previous duke and a stickler for attempting to ensure that debts were paid off according to the schedule laid down in the trust, opposed Arundel’s attempts to siphon off income set aside for the trust. Add. 37663, ff. 124, 142, 149-50, 403. Indeed, there exists a draft bill for better enabling Rycaut and others to sell lands to pay off the 6th duke’s debts. Steer, ii. 192.

Arundel attended the prorogation on 17 May 1680 and was present on the opening day of the 1680-1 session, 21 Oct., attending on 39 days, just over 67 per cent of the total. On 15 Nov. he voted to reject the exclusion bill on its first reading. On 7 Dec. he was the only member of the Howard clan to vote Stafford not guilty of treason. Evelyn Diary, iv. 234; Burnet, ii. 269. In March 1681 Danby’s pre-sessional forecast suggested that if Arundel attended the Oxford Parliament, he would vote in favour of the earl’s bail. On 23 Mar., two days after the opening of Parliament, Danby’s son included Arundel on a list of absent lords, ‘your friends’, although he did turn up on the last day of the Parliament, 28 March. HMC 14th Rep. IX, 425. On 4 May Arundel attended the trial of Edward Fitzharris in King’s Bench, watching along with the rest of the ‘loyalists’ from the gallery, whilst Shaftesbury and his acolytes remained below. HMC 10th Rep. IV, 172. He also attended on the trial on 11 May and 9 June 1681. Beinecke Lib. OSB mss 6, box 2, folder 41; Luttrell, Brief Relation, i. 95-96.

In July 1681 Arundel was in Derby, where it was reported that he would sign that county’s loyal address. Add. 75360, John Millington to Halifax, 27 July 1681. In April 1682, when York appeared to public acclaim at the feast of the Hon. Artillery Company, Arundel was elected one of the stewards. CSP Dom. 1682, p. 173. In November he succeeded Prince Rupert, duke of Cumberland, as constable of Windsor and lord lieutenant of Berkshire and Surrey. He added Norfolk to his lord lieutenancies on Yarmouth’s death the following year, prompting Roger Morrice to worry that between them Arundel and his uncle, Henry Somerset, duke of Beaufort (also a convert from Catholicism) had jurisdiction over some 20 counties. Morrice, Ent’ring Bk, ii. 357. Having succeeded his father in January 1684, Norfolk quickly assumed the role of earl marshal, issuing several orders in February. CSP Dom. 1683-4, pp. 284, 297. Also in February he acted as bail for William Herbert, earl of Powis, upon his release from the Tower. Morrice, Ent’ring Bk, ii. 452. In May 1684, he facilitated the surrender of the King’s Lynn charter and was appointed the new high steward. CSP Dom. 1684-5, p. 35.

During the final illness and death of Charles II, Norfolk took steps to ensure the peaceful accession of James II through regular communication with his deputy lieutenants, as he did during the rebellion of James Scott, duke of Monmouth. Norf. Lieutenancy Jnl. 1676-1701 ed. B. Cozens-Hardy, (Norf. Rec. Soc. xxx), 59-62. A close relationship with James II was perhaps suggested by his rapid appointment as a knight of the Garter, although James insisted that the honour was not bestowed ‘for any particular merits’ but merely because Norfolk was the first duke in the kingdom. Life of James II, ii. 42. He was installed on 22 July 1685. Morrice, Ent’ring Bk, iii. 31. The duchess had become a lady of the bedchamber in April 1685, not surprisingly given that her parents were in high favour. Verney ms mic. M636/40, Pen. Osborne to Sir Ralph Verney, 22 Apr. 1685.

The reign of James II

During the election of 1685, Norfolk was active in support of court candidates for the counties of Berkshire, Norfolk and Surrey, and may well have intervened in those boroughs where his family had a traditional interest, such as Arundel, Castle Rising, Horsham, King’s Lynn and Thetford. HP Commons, 1660-90, i. 129, 322, 324, 328, 334, 408, 418, 423. Nevertheless, he was anxious to promote a consensual approach to the elections. In Norfolk he not only expected his deputy lieutenants to call a meeting of the gentry but encouraged them to consult Horatio Townshend, Viscount Townshend and Sir John Holland^‡. He expressed every confidence in the choice to be made ‘since we may say (without bragging) that no county affords so many loyal gentlemen.’ Norf. Lieutenancy Jnl. 1676-1701, pp. 63, 65; HMC 11th Rep. VII, 105-6. Townshend actually attended Norfolk at Norwich ‘upon the account of settling the election for this county’. Clarendon Corresp. i. 113-14. In Surrey a meeting of the deputy lieutenants produced a shortlist of three candidates, which Norfolk then encouraged them to reduce to two, but this did not prevent a contest or allegations of trickery. HMC 11th Rep. VII, 106; HP Commons, 1660-90, i. 408. He was also able to use his influence in Windsor where in March 1685 he was appointed lord high steward, alongside George Jeffreys, Baron Jeffreys, who became recorder under the new charter. CSP Dom. 1685, p. 69.

Norfolk was present on the opening day of the 1685 Parliament, 19 May, and attended each of the 31 days before the adjournment on 2 July, being named to six committees. One reason for his exemplary attendance was because of a legal cause. On 1 June his uncle, Charles Howard, promoted an appeal to reinstate the landmark ruling on perpetuities promulgated by the lord chancellor, Heneage Finch, earl of Nottingham, concerning the Howard estate at Greystoke, which had been overturned by a commission of review. On 19 June the House affirmed the original ruling. Cases Argued and Adjudged in the High Court of Chancery Published from the Manuscripts of Thomas Vernon (1726), i. 163; Arguments and Reports of Sir Henry Pollexfen (1702), 223; HMC Lords, i. 299-300; Nottingham’s Chancery Cases (Selden Soc. lxxiii), pp. lxxxiv-xc.

In September 1685 Norfolk was engulfed in a public humiliation. As Narcissus Luttrell^‡ put it, his duchess had been ‘found in bed’ with another man, ‘to her great scandal’. Luttrell, Brief Relation, i. 358-9; Reresby Mems. 392-3. Her response had been to ‘run away’, and a report of 3 Oct. confirmed that she had left the court ‘upon a quarrel betwixt her grace and her Lord upon his unfortunate finding a gentleman’s shirt and waistcoat in bed with her’, items which belonged to a Dutch adventurer named John Germaine^‡. Add. 61414, f. 66; TNA, PRO 30/53/8/15, A. Newport to Herbert, 3 Oct. 1685. Norfolk reacted by obtaining a pass on 26 Sept. for himself and his duchess to travel to France where he intended to place her in a nunnery. CSP Dom. 1685, p. 442; TNA, PRO 30/53/8/15, Brackley to Herbert, 9 Oct. 1685. The duchess’s detention was entirely involuntary ‘for she would escape if she could’, and she later claimed not only that the duke had abandoned her but that her incarceration had caused her conversion to Catholicism. Morrice, Ent’ring Bk, iii. 37-38; State Trials, xiii. 1339. Norfolk returned to England at the end of October, but the stress of the situation appears to have taken its toll: there were rumours that his nails and hair had fallen out as though he had been poisoned, and in November he was said to have been ‘indisposed of a hypochondriac melancholy.’ Morrice, Ent’ring Bk, iii. 49; HMC 6th Rep. 463.

Norfolk’s marital difficulties may have been bound up with his financial problems. In August 1685 he had conveyed Sheffield Park (part of his wife’s jointure) to John Coggs, a goldsmith, as security for a mortgage on some of his other lands, and on 3 Nov. 1685 Danby was informed that Norfolk ‘can make no estate for he’s only tenant for life’. Sheffield Archs. Arundel Castle mss ACM/SD/203; Add. 28051, f. 202. There is even a suggestion that Norfolk was later moved to try to divorce his wife because the jointure settled on her made it impossible to sell the manors upon which it was secured in order to discharge a debt. J. Habakkuk, Marriage, Debt, 174; J.M. Robinson, Dukes of Norfolk, 145. Norfolk was certainly searching for additional sources of income. In about November 1685, Norfolk, Peterborough and Henry Hyde, 2nd earl of Clarendon, drew up articles of agreement commissioning John Irving to act as their deputy in licensing pedlars and petty chapmen, in return for £10,000. CCSP, v. 657. On 25 Jan. 1686 a licence was issued for continuing the office for 21 years at an annual rent of £5,000, but their licence was cancelled on 15 Nov. 1686. CSP Dom. 1686-7, p. 16; C212/7/2.

Norfolk was present when Parliament resumed on 9 Nov. 1685 but that was the only day he attended. Interestingly, given his marital problems, on 14 Nov. his proxy was, nevertheless, given to his father-in-law, Peterborough. Norfolk was therefore absent at a call of the House on 16 Nov., when it was recorded that he had left his proxy, and from yet another appeal against his management of the Norfolk estates. HMC Lords, i. 325.

Norfolk attended the trial of Henry Booth, 2nd Baron Delamer (later earl of Warrington), on 14 Jan. 1686, finding him not guilty. State Trials, xi. 514, 593; Morrice, Ent’ring Bk, iii. 80. He attended the prorogations on 10 May 1686 and 28 Apr. 1687. In June 1686, he had ‘laid down’ the command of his regiment. Morrice, Ent’ring Bk, iii. 148; Luttrell, Brief Relation, i. 381. On 13 July 1686 a newsletter report had Norfolk sending over a gentleman to France to fetch the duchess back to England. CSP Dom. 1686-7, p. 208. The duchess returned to England in November; she was in London on 12 Dec. 1686 and expected to reside at Drayton. Verney ms mic. M636/41, P. Osborne to Sir R. Verney, 28 Nov., 14 1686; CTB, viii. 1038. In February 1687 the duchess took advantage of the creation of the ecclesiastical commission to petition for alimony proportionate to the fortune she had brought to the marriage. The court ruled in April that Norfolk should cohabit with his duchess by Michaelmas 1687. When this failed to happen, the duchess returned to the court on 6 Oct. and on 12 Jan. 1688 was granted £400 a year from her father’s estate, £600 from the duke and £500 alimony during the separation. Kenyon, Sunderland, 733. Luttrell, Brief Relation, i. 399, 427; HMC Downshire, i. 237, 287; HJ, xxxiv. 731, 733-4. Even then Peterborough had to petition on 1 Mar. 1688 for a writ of ne exeat regnum to prevent Norfolk from leaving the country before he had given security for the payment of alimony and answered a suit in chancery begun by Peterborough on his daughter’s behalf. CSP Dom. 1687-9, p. 155; Add. 34510, f. 73. He was also summoned by the ecclesiastical commission on 26 Apr. and 12 July 1688 (when he was abroad), and quickly fell into arrears with his payments. HJ, xxxiv. 734.

In August 1687 Norfolk was instructed to revive the court of chivalry for the first time since 1641, convening a meeting in October. CSP Dom. 1687-9, p. 53. Amongst the first cases to be heard was that of the misuse of the arms of Thomas Leigh, 2nd Baron Leigh, and the claim of the trunk-maker James Percy to the earldom of Northumberland. An indication of the potential political use of the court was given in November when Norfolk was instructed to end the prosecution of Sir James Tillie for displaying false arms and to give him ‘an easy dismission’ because of his loyalty to the crown. Bramston Autobiog. 299; G.D. Squibb, High Court of Chivalry, 88-90; Longleat, Bath mss Thynne pprs. 42, f. 322; HMC Downshire, i. 271-2; CSP Dom. 1687-9, pp. 104-5. Meanwhile, Norfolk seems to be have been having difficulty making up his mind about James II’s policies. One list of peers grouped Norfolk as against the repeal of the Test Acts, and in May 1687 a list of peers and their attitudes to the policies of James II marked him as doubtful. In September he wrote somewhat plaintively to his cousin and trustee, Howard of Effingham, in Virginia that ‘you could never had found a more seasonable time to be where you are.’ Lib. of Congress mss, (NRA 1675-99) Norfolk to Howard of Effingham, 10 Sept. 1687. Danby listed Norfolk among opponents of James II in the Lords, but a list of November 1687 decided that his views were still undeclared, and according to the Dutch agent, van Citters, he spent much of December in a vain attempt to persuade the deputy lieutenants and justices of Norfolk to support the repeal of the Test Acts. Add. 34510, ff. 73, 75. Morrice reported his failure with the Berkshire gentry in January 1688, by which date another list, published in Holland, had him opposed to repeal. Morrice, Ent’ring Bk, iv. 215; HMC Downshire, i. 285-6. In mid February when he received what he considered to be illegal orders from Robert Spencer, 2nd earl of Sunderland, to name several new deputy lieutenants, including at least five Catholics, and rumours were circulating that he was to be replaced as lord lieutenant of Norfolk by William Paston, 2nd earl of Yarmouth, he received permission to go abroad. HMC 11th Rep. VII, 107; Thynne pprs. 43, f. 37; Luttrell, Brief Relation, i. 431. At the end of February he was reported still to be making enquiries about the reactions of the gentry of Berkshire to the three questions, after they were reluctant to meet him. Norfolk originally planned to leave on a visit to France on 10 Mar. and to return in May. However, not until he had ‘settled his duchess’s allowance’ was he allowed to depart, along with Charles Knollys, the self-styled 4th earl of Banbury, and Thomas Colepeper, 2nd Baron Colepeper. Thynne pprs. 43, ff. 35, 37, 56; Luttrell, Brief Relation, i. 435. He received a pass to go abroad on 20 Mar. and left on the 22nd. CSP Dom. 1687-9, p. 401.

Norfolk returned to England on 30 July 1688 and within a month had been ordered to go to his lieutenancies, as one newsletter would have it, ‘to take care to promote the elections to the next Parliament.’ Thynne pprs, 43, ff. 164, 186; Verney ms mic. M636/43, newsletter, endorsed 30 Aug. [1688]. In August, Sir John Reresby^‡ found him ‘firm to the Protestant religion’ and ‘not satisfied with the Court’. Reresby Mems. 505. In September Sunderland sent him a list of approved candidates for election to Parliament. On 5 Oct. the duchess was given a pass to go to France, and on 16 Oct. both the duchess and her father were granted an amended pardon. CSP Dom. 1687-9, pp. 272-3, 319, 403. She remained out of the country during the Revolution, sending presents to her mother from abroad in February 1689. HMC Var. viii. 68; CTB, viii. 2165. When she returned to England in April 1691 she and her companions were objects of suspicion. Luttrell, Brief Relation, ii. 207.

As the threat of invasion increased and the king’s confidence in his own policies wobbled, Norfolk reported that he had been unable to reinstate the displaced magistrates of the county of Norfolk as they had all refused to act with unqualified justices, but he stressed that they were all ‘truly loyal’, that ‘neither the Prince of Orange nor none of his party have the least correspondence in this county’ and that the militia were ready to defend the coast. Norf. Lieutenancy Jnl. 1676-1701, pp. 88-89; CSP Dom. 1687-9, p. 316. He was summoned to London on 15 Oct. and returned to Norfolk with instructions to replace all Catholics and Dissenters in the county militia by churchmen. CSP Dom. 1687-9, p. 316; Luttrell, Brief Relation, i. 471; HMC Le Fleming, 217. He continued to hold the militia in readiness and to transmit the king’s orders for the defence of the realm to the deputy lieutenants and magistrates. Norf. Lieutenancy Jnl. 1676-1701, p. 92; Bodl. Tanner 28, f. 232. On 6 Nov. when it was clear that the Dutch fleet had moved westward, he was ordered to leave Norfolk and to settle matters in Surrey and Berkshire instead. CSP Dom. 1687-9, p. 342. Before he left the gentlemen of the county approached him about petitioning for a free Parliament, ‘but the duke took an occasion to divert it at that time.’ Bodl. Tanner 28, f. 258. A newsletter suggested that Norfolk had intended to sign the petition promoted by the bishops, but opposed by George Savile, marquess of Halifax and Daniel Finch, 2nd earl of Nottingham, and had then changed his mind: Norfolk declared with great warmth on Thursday night [15 Nov.],

that it would be an eternal infamy to any person of honour yet pretended to be of the Church of England to refuse the subscribing of it, and yet sent an excuse yesterday morning, and I am not assured that he has since subscribed it; I believe he has not, tho’ ’tis commonly reported he did. Bodl. Carte 130, f. 303.

Norfolk’s name accordingly appears on the list of those refusing to subscribe to the petition on 16 November. Having received his writ for the forthcoming session of Parliament on 29 Nov. 1688, William Lloyd, then bishop of Norwich, wrote hopefully to William Sancroft, archbishop of Canterbury that Norfolk would act so that some good men might be elected, not least because the duke seemed ‘very steady for the established government and among several instances he drank your grace's health at my table with great expressions of service to your grace and this was the same day known everywhere in this place and reckoned as a mark of his zeal for the Church of England’. Bodl. Tanner, 18, f. 183.

In truth, at the end of November 1688, Norfolk’s position was far from clear. He met with the deputy lieutenants, the militia and other gentlemen in Norwich market place where he declared for a free Parliament but prevented disorder by assuring those assembled that the king had himself decided to call a Parliament in January; he then repeated the performance at King’s Lynn where he assured the mayor and aldermen that ‘no man will venture his life more freely for the defence of the laws, liberties and protestant religion than I will do.’ Barely a week later, the tone of his speeches sounded very different as he began to talk of the need ‘to procure the settlement in church and state in concurrence with the lords and gentlemen in the north and pursuant to the declaration of the Prince of Orange.’ He assured his deputy lieutenants, ‘that there is a very fair prospect of all things being settled by a Parliament’ and invited as many as possible of the Norfolk gentry to go with him to London so that the king would be left in no doubt about gentry solidarity, insisting that,

I take a great deal of pride to appear accompanied by so many worthy and honest gentlemen who have never left me and whom I will never forsake: I assure you I would not move this if your own and your country’s honour were not in my opinion concerned in it. Luttrell, Brief Relation, i. 483; HMC Lothian, 134-5; Norf. Lieutenancy Jnl. 1676-1701, pp. 94-97.

As Morrice reported, Norfolk and most of the gentlemen had declared in Norwich their acquiescence in the king’s decision to call a Parliament and had not continued in arms, but had been sent home by Norfolk. Morrice, Ent’ring Bk, iv. 367.

In London Norfolk was one of the peers that dined with Prince William at St James’s on 20 Dec. 1688. Ibid. 401. On 21 Dec. he attended the meetings of the peers who had taken charge of the government, where he signed the Association and was dispatched to find out when William wished the peers to wait upon him. He also attended on 22, 24 and 25 December. On 24 Dec., at Norfolk’s instigation, an order was given for the release of the children of his brother, Lord Thomas Howard. They had been left behind when Lord Thomas left to join the exiled king and were imprisoned in Faversham. Kingdom without a King, 151-3, 159, 165.

Reign of William III

Norfolk was present on the first day of the Convention, 22 Jan. 1689, attended on 85 days, 52 per cent of the total and was named to ten committees. His first task was to ask William to return the instrument by which he had been asked to take on the administration of government so that more signatures could be added to it, which he brought back into the House on 25 January. Norfolk’s next action on 23 Jan. was to petition the House for an order to prevent the sale of his grandfather’s art collection by his stepmother’s second husband, Colonel Thomas Maxwell; the committee on petitions reported in his favour on the 24th, in so far that any sale was postponed until Norfolk could put his case before chancery. HMC Lords, ii. 11-12. On 21 Sept. 1691 Norfolk gave a quitclaim to the dowager duchess and Maxwell in respect of certain pictures, and on 28 Jan. 1692 Sir Charles Lyttelton^‡ referred to Norfolk selling his pictures at auction. Steer, ii. 197; Hatton Corresp. (Cam. Soc. n.s. xxiii), 169-70.

On the settlement of the constitution, Norfolk was reported to have been the only duke to have voted against a regency on 29 Jan. 1689. On 31 Jan. he voted against declaring William and Mary to be king and queen, but by 4 Feb. he was prepared to agree with the Commons that James II had abdicated rather than deserted the throne, and on 6 Feb. he voted in favour of the proposition that James had abdicated and that the throne was thereby vacant. Norfolk’s support for the new regime was clearly important, not just because his wealth and influence stretched over several counties but also because as earl marshal he played a significant role in the ceremonial life of the monarchy and the nation, including the proclamation of the new monarchs. HMC Portland, iii. 425, 428. One of William III’s first acts as king was to confirm Norfolk in his three lord lieutenancies and appoint him a gentleman of the bedchamber and a member of the Privy Council. On 12 Feb. Norfolk carried the message to the prince and princess on when Parliament should attend them with their Declaration of Rights. On 6 Mar. he joined the protest against the passage of the bill for the better regulation of the trials of peers, arguing that it ‘strikes at the root of all the privileges of the peers’. In May he obtained an act to permit the building of tenements on Arundel ground, which passed its third reading on 23 May. It was returned without amendment by the Commons on 28 May, having been managed through the lower House by George England^‡. Duke of Norfolk’s Deeds at Arundel, 32. Henceforth, Norfolk appeared to live a somewhat peripatetic existence when in London. In December 1693 he was described as having lately lived in a house in ‘the Old Spring Garden’, which technically lay within the verge of the court. CSP Dom. 1693, p. 433. In June 1695 he was about to leave the house he had rented from George Stepney in Scotland Yard. TNA, SP 105/54, f. 98. On 20 Feb. 1699 he leased a house on the east side of St James’s Square for three years at an annual rent of £200 per annum. Duke of Norfolk’s Deeds at Arundel, 265.

On 31 May 1689 Norfolk voted against reversing the convictions of Titus Oates for perjury. On 5 July he was granted leave to go into the country for ‘some time’ for health reasons. He returned on 10 Aug., but after attending on 12 Aug., he missed the remainder of the sittings before the adjournment on 20 August. In September Norfolk demonstrated his active support for the new administration, refusing to accede to requests from his deputy lieutenants in Norfolk for more time before disarming those who had failed to take the new oaths and insisting that those who changed their minds were more likely to do so out of self interest than from ‘any affection to the present government’. Further, ‘no man, I believe, has shewn himself less willing (ever since I have had any concern in Norfolk) to do a hard thing to any gentleman than I’, as he had ‘always used these particular gentlemen with as much respect and friendship as any in the county, yet when it comes to the owning a government which we must support or fall with it there is no jesting.’ HMC Lothian, 135-7; Norf. Lieutenancy Jnl. 1676-1701, pp. 98-99.

When the session resumed, Norfolk was in attendance on 19 and 21 Oct. 1689. In a list drawn up between October 1689 and February 1690 Carmarthen classed him as among the supporters of the court. He was present when the next session opened on 23 Oct., attended on 31 days, a little over 43 per cent of the total and was named to six committees. Norfolk remained sympathetic to the plight of those Catholics who fell foul of the government. In November he stood bail for William Herbert, styled Viscount Montgomery, the future 2nd marquess of Powis. Morrice, Ent’ring Bk, v. 243. In the Lords he was again involved in promoting private legislation, this time a bill to discharge himself and the trustees of the previous duke, upon payment of certain sums of money to Lady Elizabeth Russell, wife of Bartholmew Russell, which was reported by Laurence Hyde, earl of Rochester on 8 Jan., and passed the Lords on 9 Jan. 1690. It was managed by Sir Joseph Tredenham^‡ in the Commons and received the royal assent on 27 January. Norfolk last attended on 17 Jan., his absence probably being explained by his mission to Spithead to greet the queen of Spain, who received him on 28 January. Luttrell, Brief Relation, ii. 8; Morrice, Ent’ring Bk, v. 342, 391.

Norfolk was present when the new Parliament assembled on 20 Mar. 1690, when he took the new oaths. He was present on 35 days, nearly 65 per cent of the total, being named to five committees, including one for a conference on the regency bill (12 May). When the House investigated the misuse of protections in March, Norfolk denied issuing those that were listed under his name. HMC Lords, iii. 12. He was excused attendance at a call of the House on 31 March. During the recess when fears of invasion were high, he was active in promoting the arrest of suspected Jacobites, openly writing of the need for ‘some exemplary punishment’ on those who had betrayed the fleet, although he left the question of bail to the discretion of his deputy lieutenants. Norf. Lieutenancy Jnl. 1676-1701, pp. 109, 112, 114. In April he was allegedly behind a petition from the county of Norfolk for relief for the non-juring clergy, the county having many such clerics. Morrice, Ent’ring Bk, v. 424. In May he had been given a pension of £3,000 a year for his ‘good and noble service’, backdated to March 1690. CTB, 1689-92, p. 629; HMC Kenyon, 277.

Norfolk was absent when the 1690-1 session convened on 2 Oct. 1690. On 6 Oct. Carmarthen noted that he ‘needs only to be spoken to to attend’, and he was accordingly present on the next day. Browning, Danby, iii. 181. On 9 Oct. he led the deputation of Surrey gentlemen when they presented an address to William III congratulating him on his success in Ireland. Luttrell, Brief Relation, ii. 115. He was present on 32 days, 44 per cent of the total, and was named to three committees. Despite his commitment to the new regime, he was still attentive to the needs of his Jacobite brother, offering a proviso on his behalf to the bill attainting rebels in December 1690. HMC Lords, iii. 238. Lord Thomas Howard drowned at sea that same month before his outlawry could be formalized and Norfolk successfully petitioned on 9 May 1691 to prevent his brother’s estates from being confiscated by the crown. CSP Dom. 1690-1, p. 365. His nephew, Thomas Howard, the future 8th duke of Norfolk was now his heir.

Following the adjournment on 5 Jan. 1691, Norfolk attended the king into Holland. Luttrell, Brief Relation, ii. 134; CSP Dom. 1690-1, p. 337; Morrice, Ent’ring Bk, v. 568. This seems to have been an occasion for another show of conspicuous wealth, with Norfolk and William Cavendish, 4th earl (later duke) of Devonshire, vying for the finest livery. Beds. Archives, L30/8/31/10. In March it was rumoured that he was about to become master of the horse. Luttrell, Brief Relation, ii. 188; Bodl. Tanner 27, f. 249. He paraded his Anglicanism by attending the consecration of John Tillotson, as archbishop of Canterbury in May, but this may have been because of the accompanying festivities, for Norfolk’s way of life was somewhat at odds with the reforming religious fervour of the day: in August he was fined £5 for gambling on the Sabbath. Luttrell, Brief Relation, ii. 238; HMC Portland, iii. 472. Ever the moralist, John Evelyn dismissed Norfolk as ‘a dissolute Protestant’. Evelyn Diary, v. 394.

Norfolk was present when the next session began on 22 Oct. 1691; he attended on 79 days, a little over 81 per cent of the total and was named to six committees. On 4 Dec. a petition from Norfolk was referred to the committee for privileges, asking for a declaration that writs of prohibition issued in exchequer chamber to the court of chivalry should be declared null and void, and citing three cases in particular, including Domville v. Oldys. HMC Lords, iii. 347-9; Squibb, 96-97. On 12 Dec. Gilbert Burnet, of Salisbury reported from the committee that having heard Norfolk’s counsel and the barons of the exchequer, they had ‘some doubts concerning the way of bringing that matter before the House’, whereupon Norfolk was granted leave to produce some precedents before the committee at their next sitting. Nothing else seems to have occurred. On 17 Dec. he was named as one of the reporters of the conference on the trials for treason bill, duly reporting back and being named to the committee to draw up reasons why the Lords insisted on their amendments. On the same day he was deputed by the House to request the king to withdraw the military guard from playhouses following the assault on Henry Yelverton, Viscount Longueville, which had been reported to the House the previous day. According to Luttrell, Norfolk was also involved in the affray but this was not confirmed by the Journal. Luttrell, Brief Relation, ii. 315. On 22 Jan. 1692 he acted as teller in opposition to Charles Mordaunt, earl of Monmouth (later 3rd earl of Peterborough) on a motion to agree a resolution in the committee of the whole on the bill against corresponding with the enemy.

The reason for Norfolk’s increased attendance was almost certainly his desire to push through a bill to divorce his wife and enable him to remarry. This was a controversial piece of legislation. Just two years earlier John Lewknor^‡, facing a similar situation, had obtained a separation in the ecclesiastical court and then went on to obtain an act of Parliament to bastardize any children that might be born to his adulterous wife. He had not been able to obtain the right to remarry. The only comparable proceedings in living memory, the divorce of John Manners, then styled Lord Roos, now 9th earl (and later duke) of Rutland, had taken place more than 20 years earlier and included a clause which specifically prevented its use as a precedent. The only previous example of parliamentary divorce was that of William Parr^†, marquess of Northampton, in the time of Edward VI. Many people (and most bishops) believed divorce to be a matter for spiritual rather than secular jurisdiction. Not only was there no consensus about the limits of Parliament’s power, but the House had no agreed procedures for this kind of legislation. This was particularly unfortunate since, like the Roos divorce, the Norfolk case entwined personal and financial issues with procedural and constitutional ones as well as with questions of national politics. Norfolk, once a Catholic but now a Protestant and deeply involved with the government of William and Mary, was trying to divorce a woman who had once been a Protestant but was now a Catholic and who was believed to be equally deeply involved in Jacobite plotting. Furthermore, as matters stood the clear heir to the dukedom was Norfolk’s young nephew, only nine years old, but since he was being brought up by his Catholic mother at the exiled court, there was little doubt that at Norfolk’s death the premier dukedom of England would pass to a Catholic Jacobite sympathizer. The duchess alleged that Norfolk had been plotting to divorce her for three years and that her husband was as concerned for his pocket as for his religion or posterity. His real motive was a determination to gain control of her fortune and specifically to prevent her from blocking the sale of the manor (and therefore the constituency) of Castle Rising to Sir Robert Howard. Another participant who had designs on the duchess’s estate (in this case her manor of Drayton) was her Whig cousin Monmouth. Lyttelton thought the king and queen for the duke, but that the duchess had ‘a strong party in the House’ and ‘the court faction to support her’, although Nottingham was against her. Hatton Corresp. (Cam. Soc. n.s. xxiii), 169-70.

On 7 Jan. 1692 the Lords ordered that Norfolk’s divorce bill be introduced the following day by William Wentworth, earl of Strafford. On the 8th the Lords debated whether to hear counsel on the bill, settling on the 12th. It was then that the first real debate took place, when the duchess’s counsel argued that the duke ought first to seek a separation in the ecclesiastical courts. Luttrell, Brief Relation, ii. 335-6. As all present knew, Norfolk was unlikely to take such a course of action: the ecclesiastical courts would not grant him a separation on the grounds of his wife’s adultery, since he himself was also a known adulterer. Norfolk won the vote to receive the bill by eight; Monmouth acted as teller for those voting in favour and Lumley, now earl of Scarbrough, for those against. Nineteen peers, of solidly Tory persuasion, entered a formal protest, significantly they included only four of the episcopal bench, Henry Compton, of London, Peter Mews, of Winchester, Thomas Watson, of St Davids and Thomas Sprat, of Rochester, prompting suspicion that those entrusted with the religious health of the nation were actually following a political directive from above. Burnet somewhat unconvincingly condemned high Anglican opposition to the Norfolk divorce as a symptom of Catholic indoctrination rather than party politics. Burnet, iv. 226-9. The bill was then given a first reading, prompting the countess of Nottingham to note, ‘I think it very strange so infamous a woman should find any friends would publicly countenance her’. Add. 29596, f. 134. On the 13th the duchess petitioned, which resulted in three prominent civil lawyers being ordered to attend before the second reading debate, Sir Richard Raynes, Sir Charles Hedges^‡, and Dr George Oxenden^‡. Directed to respond, on 16 Jan. Norfolk exhibited a charge of adultery by his duchess with Germaine in 1685 and at other times since. The duchess’s counsel countered that the charge was too general and over six years old, for most of which time she had ‘at the advice and by the approbation of the duke, was and continued beyond the seas, to ease him in his charge and port; he frequently declaring, that when he should be more easy in his fortune, they should live together’. The duke then amended his charge and after several divisions on matters of procedure concerning the manner in which the duchess should deliver her answer, she duly gave in her answer on 21 Jan., including a counter charge of adultery against Norfolk. HMC Lords, iv. 19. The duchess petitioned on 25 Jan. for an allowance from her husband during the suit. Between 26 Jan. and 9 Feb. witnesses were heard on both sides and on 12 Feb. counsel and civil lawyers summed up, continuing until eight in the evening. Add. 70081, newsletter, 13 Feb. 1691/2. On 16 Feb. the House voted on the use of proxies. Proxies were used in the initial vote on whether to put the question on the use of proxies. The House agreed to put the question by a majority of only three, and the distribution of proxies in that vote suggested that Norfolk could count on substantially more (17) than his opponents (9). When the main question on proxies was put (without proxies) Norfolk’s slim advantage fell away. The motion to use proxies failed by 13 votes. On 17 Feb. the House had to mediate in a quarrel between Rochester and Edward Clinton, 5th earl of Lincoln, over remarks made by Lincoln in the course of a debate on Norfolk’s bill. Rochester had accused Lincoln of taking ‘great liberty with the House’ in response to which Lincoln had retorted, ‘I do not take so much liberty with the House, as you do with the nation’. Lincoln was then reprimanded. Then the motion that the bill be given a second reading was rejected by only five votes after a debate that lasted until eight in the evening. Luttrell, Brief Relation, ii. 362; HMC Hastings, ii. 344. As Robert Yard^‡ reported, ‘it happened that some of the duke’s friends were indisposed, and some others went out not long before the question was put, thinking it was not so near and that they should be back time enough, by which the duke lost six or seven voices’. Beinecke Lib. OSB mss 1, Box 2, folder 98. It was fairly clear that had proxies been used, ‘the duke had carried it’. Some contemporaries detected a division between the older lords and civilian lawyers (against) and the younger lords (for the bill); another view had ‘all the new bishops were for’ the duke, but London, Winchester, Rochester and St Davids against him. Another analysis had some lords against the bill because they had daughters, while their sons supported it because they had wives. Bodl. Ballard 20, f. 171; 22, f. 22; Carte 130, ff. 335-6. The hearings had attracted widespread interest, and the proceedings were published as pamphlets, including one in Dutch. A true account of the proceedings before the House of Lords; from Jan. 7 1691[-2], to Feb. 17 (1692); His grace the duke of Norfolk’s charge against the dutchess before the House of Lords and the dutchesses answer (1692); De proceduuren gehouden in ’t Hogerhuis tusschen de hertog en de hartogin van Norfolk (Rotterdam, 1692). A French newsletter described the evidence as so filthy as scarcely to be repeatable, and the king, attending incognito, was reputed to have found the proofs offered by the duke ‘so obscene that he stayed but little.’ HMC 7th Rep. 221; Luttrell, Brief Relation, ii. 344; HMC Portland, iii. 488.

Norfolk only attended one of the following six days before the adjournment on 24 Feb. 1692. On 26 Sept. 1692, as the senior commissioner present, he prorogued Parliament. Despite his disappointment over the divorce, Norfolk was unwilling to give up and so set about remedying the defects in his case as best he could, chiefly his lack of a legal ruling against the duchess. Discouraged from using the ecclesiastical courts by his own adultery, he substituted instead a suit against Germaine in King’s Bench for criminal conversation. On 24 Nov. his counsel, including Sir John Somers, the future Baron Somers, asked for £100,000 damages, but even with the overtly partisan lord chief justice, Sir John Holt^‡ on his side, the jury awarded him a mere 100 marks, because ‘they were not fully satisfied with the evidence’. State Trials, xii. 927-48; HMC Portland, iii. 508; Add. 29574, f. 123. Charles Hatton thought that the award had ‘disappointed his grace in his intention to bring in a bill of divorce into the Lords’ House again upon the credit of his verdict’, but Yard disagreed, thinking that ‘it will serve the duke’s end by opening a way to bring this business again into Parliament’. Beinecke Lib. OSB mss 1, box 2, folder 108.

Norfolk was present when the next session began on 4 Nov. 1692, attending on 53 days, 52 per cent of the total and was named to eight committees. On 21 Nov. he was ordered to attend the House to explain two of his protections. Norfolk’s second divorce bill was offered to the House on 22 December. On 29 Dec. the House ordered production of a copy of the record of judgment against Germaine and instructed Lord Chief Justice Holt to attend. On 2 Jan. 1693 when the Lords learned that the duchess had not been a party to the action against Germaine, Norfolk’s bill was rejected on its first reading by seven votes (this time after proxies had been counted). HMC Lords, iv. 278-9. Evelyn thought that Norfolk had no one but himself to blame ‘he having managed it so very indiscreetly’, but Luttrell pointed once again to Norfolk’s failure to secure a ruling in the ecclesiastical courts. Evelyn Diary, v. 127; Luttrell, Brief Relation, iii. 4. Norfolk took the defeat badly, saying ‘he would not come any more amongst them’, and that the queen wished ‘those who opposed the bill might be all made cuckolds’. HMC Finch, v. 8. He threatened the man who had printed an account of the proceedings with an action of scandalum magnatum and planned to take out a writ to seize the duchess and ‘keep her from all company.’ Luttrell, Brief Relation, iii. 16; HMC Finch, v. 16. Meanwhile, on 31 Dec. 1692 Norfolk voted against committing the place bill, and on 31 Jan. 1693 entered a protest against the resolution not to proceed with the trial of Charles Mohun, 4th Baron Mohun. On 4 Feb. he found Mohun not guilty of murder. On 7 Mar. he sought permission of the House to waive his privilege so that a dispute between himself and his uncle Charles Howard could be settled by arbitration. By April 1693 Norfolk was petitioning the treasury, alleging that he was over two years in arrears of his pension, and proposing to lend money in return for a more certain payment of his pension. CTP, 1556-1696, p. 287.

Norfolk was present when the session of 1693-4 began on 7 November. He attended on 57 days, around 45 per cent of the total and was named to two committees. On 14 Nov. 1693 he was involved, as earl marshal, in a case of privilege. Peers Mauduit claimed that as Windsor Herald he was a sworn servant of the crown and thus entitled to privilege. When on 23 Nov. the House voted against extending privilege to such persons, Norfolk protested against it. On 1 Dec. he was a teller, in opposition to Monmouth, on whether to adjourn the House in the case of Grafton v. Holt and on the same question on 21 Dec., in opposition to Charles Seymour, 6th duke of Somerset. On 5 Jan. 1694 he was teller, again in opposition to Somerset, on whether to appoint another day to consider whether to agree to the amendments to the bill for the free proceedings in Parliament. On 17 Feb. he voted against reversing the court of chancery’s dismission in the case of Montagu v. Bath. On 6 Mar. he was appointed one of the managers of the conference on the mutiny bill. On 13 Mar. he was ordered to attend on the following day, concerning protections granted by peers. On 14 Mar. when, in the midst of the scandal caused by the flagrant abuse of protections by Thomas Parker, 15th Baron Morley, the House ordered that no peer should be able to enter a written protection in the book of protections until he had personally attended the House in that same session, Norfolk entered a solitary protest on the grounds:

that the taking off any part of the undoubted privileges which every peer of England enjoys by his birthright, by a vote in a pretty thin House, especially when a peer of this House moved, on the behalf of the absent Lords, that a day might be appointed for the debate of a matter in which they were so much concerned, seems, in the manner of it, to make too light of what this House ought to esteem so sacred as the privileges of the peerage of England.

Norfolk’s financial situation was improved when on 28 Apr. 1694 he was at last able to settle his long dispute with his duchess. By articles of agreement she agreed to the sale of Castle Rising and of her interests in the manor of Sheffield and in return he conceded her right to live apart from him as she wished and to have the financial independence of a single woman. She was later to claim that she had always been willing to live in accordance with her husband’s wishes and that she had promised to leave him her estate if she predeceased him. Castle Rising was bought by Thomas Howard^‡, son of Sir Robert Howard. In June 1694 the Sheffield estate was re-organized so that the duchess could receive £600 p.a. for her sole use and separate maintenance, and £800 p.a. as part of her jointure. These jointure lands were to be held separately for the joint lives of the duke and duchess. State Trials, xiii. 1338-40; Catalogue of the Arundel Castle Mss ed. Meredith, 147.

Norfolk was present when the next session began on 12 Nov. 1694. He was present on 57 days of the session, 47.5 per cent of the total and was named to six committees. He found that the queen’s death had ‘taken away the little mirth there was’ at court, however he was sufficiently engaged, politically, to ask his cousin Charles Howard, 3rd earl of Carlisle, on 29 Jan. 1695 for a blank proxy and to send him a form for that purpose. Castle Howard, J8/1/671, Norfolk to Carlisle, 29 Jan. 1695. On 8 Feb. the Lords ordered that Norfolk should have sole control over the role of those peers who had an office to perform at the queen’s funeral. Norfolk, as earl marshal, laid before the Lords on 15 and 25 Feb. a scheme of the procession at the funeral. On 19 Mar. he entered a protest at the resolution that if a peer summoned by writ died leaving two or more daughters, and all the daughters died with only one leaving issue, that this issue has a right to a writ of summons. He argued that the resolution was not only in conflict with several precedents but that the House should have allowed the heralds sufficient time to produce further precedents. As earl marshal, Norfolk was probably also particularly wounded that the House had refused to follow his lead on an issue in which he could justifiably claim considerable expertise. Further, one of the baronies by writ, either originally or allowed by descent from heirs female, was ‘Howard Lord Mowbray’, now ‘in the duke of Norfolk’. SCLA, Verney pprs. DR 98/1731/14.

On 11 May 1695, shortly after Parliament was prorogued, Norfolk was shocked to discover that he had been left out of the commission of regency. It was rumoured that in retaliation he had threatened to resign his lord lieutenancies and the constableship of Windsor Castle but soon thought better of it. Luttrell, Brief Relation, iii. 470. At the Norfolk election in 1695 he told the general meeting that he wanted them to choose ‘two men that would be true and faithful to the king and government in church and state’ but refused to nominate candidates himself. The emergence of electoral rivals diminished his ability to influence elections in Norfolk and the sale of Castle Rising had deprived him of a useful pocket borough. HP Commons, 1690-1715, ii. 409-12. He exercised his interest at Arundel successfully, but later felt obliged to write a letter on behalf of the constable of the borough, who had been bound over to appear at the assizes, so Norfolk thought because he had voted for the duke’s interest. Kent HLC (CKS), U269/C118/34.

In November 1695, shortly before the new Parliament met, he composed a long letter to the secretary of state, Sir William Trumbull^‡:

by what you have told me, as well as by what passed when I spoke to the king myself, I am convinced it is more to the negligence of the friends I employed than to the mean or ill opinion the king had of me, that I owe my being left out of the commission of the regency, which considering the title I bear, the honour I have of bearing one of the great offices of the Crown and the steadiness of all my actions to support his government ... I thought I had so fair a pretence to, yet my being left out was so great a slight ... that I could not help resenting it and thinking it a less blemish to leave all myself than stay to be used worse. The favourable expressions of the king towards me make me very willing to return to his service, especially if I could do it upon a foundation past mortifications of this kind for the future and when I reflect that the reason the king gave me was that he had left all in the hands of his Cabinet Council, I wish he would allow me the honour to be of that number, which not only would be a great encouragement to me in the ambition I have to serve him, but would put me in a post to do it with that credit and honour to myself that I should not despair of being a useful as well as a diligent servant.

Trumbull seems to have taken the view that Norfolk was more concerned about money than office, for the letter is endorsed ‘will grant his pension and pay it.’ HMC Downshire, i. 582-3.

Norfolk was absent from the start of the 1695 Parliament, first attending on 10 Dec. 1695, nearly three weeks into the session. He attended on 43 days, 35 per cent of the total and was named to two committees. In January 1696 he tried to persuade the Tory Edmund Soame^‡ to stand for the vacant seat at Thetford, but although Sir Joseph Williamson^‡ insisted that it was foolish for anyone to ‘think of raising a pretension there without the support of the duke of Norfolk,’ his influence proved to be inadequate, and Soame preferred to withdraw rather than contest the election. UNL, Pw2 Hy 368; HP Commons, 1690-1715, ii. 423. On 31 Jan. Norfolk complained of a breach of privilege by reason of the arrest of his servant, Zachary Wilson, the matter being referred to the committee for privileges. He signed the Association on 27 February. He was in the House to hear the arguments and vote on the writ of error in Oldys v. Domville (relating to the prohibition to the court of chivalry obtained by Domville in 1691) which was dismissed on 10 March. Throughout that month he was probably engaged in arrangements for entertaining the Venetian ambassador, who made use of Norfolk’s house (March) and even his barge (May). Luttrell, Brief Relation, iv. 33, 57; Add. 70081, newsletter, 21 Mar. 1695[-6]. In April 1696 he sent an Association signed by himself to the Norfolk assizes, ‘which hath put the country to do the matter over again after it had in a manner gone through every parish before’. Prideaux Letters, 166-7.

The illness and then death of Henry Capell, Baron Capell of Tewkesbury, in May 1696 suggested new possibilities for advancement and for the next month Norfolk lobbied hard to replace him as lord lieutenant of Ireland. HMC Downshire, i. 668-9; UNL, PwA 679/1-2; Add. 72483, f. 163. When Charles Talbot, duke of Shrewsbury broached the matter with the king, one of the points he stressed on Norfolk’s behalf was the duke’s belief that ‘it would much contribute to the putting his affairs at ease’, hinting again at financial troubles. Shrewsbury Corresp. 113. In July Norfolk officiated at the installation of the duke of Gloucester into the order of the Garter. Bodl. Carte 233, f. 11. Norfolk attended the assizes for Norfolk in Norwich in August 1696, but scandalized the gentry by bringing his mistress, ‘Mrs Lane’, and being offended, in turn, when county society boycotted his attempt to hold a ball. Prideaux Letters, 184.

Norfolk missed the opening five days of the 1696-7 session, first attending on 2 Nov. 1696. He was present on 41 days of the session, 40 per cent of the total and was named to two committees. During September he became embroiled in the proceedings concerning the attainder of Sir John Fenwick^‡. As the acknowledged head of the Howards, he seems to have felt some obligation to assist Lady Fenwick, a daughter of Charles Howard, earl of Carlisle. At her request he was given leave to speak privately to Fenwick in the Tower in an attempt to persuade him to co-operate more fully. Norfolk was also involved by association because his wife acted as an intermediary between Monmouth and Lady Fenwick and advised her about the conduct of the trial. CSP Dom. 1696, pp. 385, 389-91; Shrewsbury Corresp. 150; Add. 33251, f. 57; CSP Dom. 1696, p. 385. Fenwick told his wife that he thought the duchess was involved as ‘she has a mind to bring her duke upon the stage’. Add. 47608, f. 51. Nevertheless, on 23 Dec. 1696 Norfolk voted to pass the bill.

On 11 Jan. 1697 Norfolk was desired to attend the House on the following day, presumably in relation to the papers delivered to the House by Matthew Smith concerning the Fenwick affair. Monmouth certainly believed that Norfolk’s testimony of what Smith had said concerning the correspondence between the exiled James II and ‘some great men in this government’ would assist his own intrigue against the ministry. Add. 33251, f. 66. It probably explains why the House on 13 Jan. ordered that lord chief justice Holt bring to the House the record of a trial in King’s Bench between Norfolk and Germaine. Norfolk was present on 19 Jan. when questions were raised about the protection that had enabled his kinsman James Howard to defraud his creditors, and on 27 Jan. when all written protections were vacated. HMC Lords, n.s. ii. 372, 380. In February Norfolk offered to stand as one of the sureties for Montgomery, and eventually put up £5,000 bail when he was released in June. Luttrell, Brief Relation, iv. 183, 241; CSP Dom. 1697, p. 206. He held the proxy of Henry Howard, 5th earl of Suffolk from 16 Mar. to the end of the session. Also in March he interested himself in the trial of Henry Howard, styled Lord Walden, the future 6th earl of Suffolk, convinced that the jury at the Sussex assizes would be packed against him. HMC 13th Rep. VI, 45. In July, together with ‘several persons of note’, he attended the Oxford assizes when Charles Hamilton, 5th earl of Abercorn [S], was tried and acquitted for murder. HMC Le Fleming, 349.

In October 1697 Norfolk hoped that John Lowther, Viscount Lonsdale, would attend Parliament as ‘we stand in need of lords who understand and pursue the interest of England as much as you do’. However, possibly of more importance to Norfolk was the opportunity to exercise the right to the first refusal of a horse owned by Lonsdale. Cumbria RO (Carlisle), Lonsdale mss D/Lons/L1/1/41/12. During the autumn he was deeply involved in planning and organizing the ceremonial welcome for William III’s return to London, and not surprisingly, therefore, he ‘made the best show’ during the king’s procession into London in mid November. CSP Dom, 1697, pp. 452-3, 461, 465-6; Verney ms mic. M636/50, Gardiner to Sir J. Verney, 17 Nov. 1697; HMC Kenyon, 423. Norfolk was present when the next session convened on 3 Dec. 1697. He attended on 33 days, just over 25 per cent of the total and was named to three committees. His attention to other duties seems to have been somewhat careless. On 6 Dec. Evelyn reported that he and the principal gentlemen of Surrey had attended at Kensington to present an address to the King (it was actually on 8 December). Norfolk was supposed to lead them ‘but came so late that it was done before he came.’ Evelyn Diary, v. 279. On 19 Jan. 1698 Norfolk stood bail for Montgomery upon his release from King’s Bench. NLW, Powis Castle Corresp. 452. On 15 Mar. he voted in favour of committing the bill against Charles Duncombe^‡. He was away from Parliament between 2 Apr. and 3 May, covering his absence by a proxy on 13 Apr. to Charles Howard, 4th Baron Howard of Escrick. He signed another proxy in favour of Howard on 3 May, and having attended on 4 May, he was absent until 14 May. A third proxy registered in favour of Howard on 19 May was vacated by Norfolk’s presence on 22 July.

At the election for Thetford in the summer of 1698, Norfolk once again failed to return Soame, support for whom was interpreted as resentment against the ministry. As James Vernon^‡ put it at the beginning of September 1698, ‘the true reason why the duke of Norfolk acts so indifferently; he has a grant of a pension, but it is not paid’. Vernon-Shrewsbury Letters, ii. 164. Norfolk did not attend the new Parliament until 16 Jan. 1699, probably because he was ill. On 8 Dec. he was said to have been indisposed, but it was presumably serious since a few days later it was rumoured that he had died. Luttrell, Brief Relation, iv. 459; CSP Dom. 1698, p. 427. By January 1699 he was sufficiently recovered to attempt another intervention in the Thetford by-election. Yarmouth complained that Norfolk was opposing his interest and that he was exploiting his position as lord lieutenant to use ‘the king’s authority ... to the prejudice of his service’. Yarmouth’s son, Charles Paston^‡, styled Lord Paston, was nevertheless returned without difficulty. On 8 Feb. Norfolk voted against the resolution in favour of retaining the Dutch guards and entered a formal protest when the resolution was carried. Overall, Norfolk was present on 17 days, 21 per cent of the total and was named to one committee. He was absent for the whole of March and April (being one of the peers written to by the lord chancellor on 13 Mar. to attend a trial), but attended the last three days of the session in May.

Norfolk attended on the opening day of the next session, 16 Nov. 1699, but on only one other day (4 Dec.) before Christmas, altogether he was in total present on 40 days of the session, nearly 51 per cent of the total and was named to three committees. The reason for his absence was ill-health. By the end of December he was in Norwich suffering from a condition described as a ‘lethargy’, which led doctors to fear he might succumb to an apoplexy. He seemed reluctant to accept doctors’ orders and Dean Prideaux on 11 Jan. 1700 felt that during the quarter-sessions ‘if the duke gives himself the liberty’, normal at gentry gatherings, ‘I know not how far it may go to the carrying him off the stage’. Prideaux Letters, 193-5. After 16 Jan. he was much more regular in his attendance in the Lords as he again attempted to secure a divorce act. Norfolk now had the precedent of Charles Gerard, 2nd earl of Macclesfield, who had obtained a divorce without a verdict against his wife in the ecclesiastical courts. As early as 19 Jan. it was said that ‘the town rings’ with the news of a divorce ‘which will come to nothing but ... publishing each other's infamy.’ HMC Var. vii. 429. Despite the Macclesfield precedent, Norfolk’s bill remained contentious, spawning something of a propaganda war in which both sides produced pamphlets to explain and justify their positions; Norfolk even published the arguments used by John Cosin, bishop of Durham in connection with the Roos divorce some 30 years previously. Case of Mary, duchess of Norfolk (1700); Answer to a printed paper entituled ‘The case of Mary, duchess of Norfolk’ (1700); Treatise concerning adultery and divorce (1700); Abstract of Bishop Cozen’s argument (1700).

On 15 Feb. 1700 Carlisle delivered in a petition for another divorce bill, which was brought in and given a first reading on the following day. Add. 29576, f. 21. As Yard commented, Norfolk did ‘not accuse her of anything before the time the last bill was rejected, but only upon what she has done since that time’. Beinecke Lib. OSB mss fc 37, vol. 3, no. 12. In presenting his case to the House, Norfolk emphasized that, like Macclesfield, he too stood in danger of being succeeded by spurious issue. Since the duchess was by now 42 and had been sexually active for over 20 years without producing a child, this was a somewhat exaggerated fear. Norfolk was also able to produce two witnesses who were able to testify to the duchess’s adultery with Germaine at various times since the failed divorce bills of 1692-3. Both were discarded servants of Germaine’s whose testimony was open to considerable doubt. On 17 Feb. the duchess petitioned to be heard by counsel against the bill, complaining that Norfolk’s bill had been sprung on her with inadequate notice, that it took away her jointure and that ‘the case is a suit begun nine years since. If this was a case of 40s. it would not do, or be allowed.’ HMC Lords, n.s. iv. 99-104. After many hearings the House was ready for the second reading debate; Yard writing on 7 Mar., the eve of that debate, ‘I believe the duke will hardly make anything of it this sessions’. Beinecke Lib. OSB mss fc 37, vol. 3, no. 19. On the following day the Lords gave the bill a second reading by 17 votes, with 20 dissenting lords, including six bishops, signing a protest. The bill was committed to a committee of the whole. The duchess’s cousin, formerly Monmouth, now earl of Peterborough, acted as teller on both divisions on the bill; the tellers on the other side were Louis de Duras, 2nd earl of Feversham and John Jeffreys, 2nd Baron Jeffreys. Immediately after the committal, a petition from the duchess was presented pointing out that the bill as it stood, set aside her jointure and marriage agreements and praying to be heard by counsel. The 9 and 11 Mar. saw the bill examined by a committee of the whole and amendments made, which were accepted by the House on the latter day, forcing Norfolk to repay her £10,000 marriage portion, and specifying that unless the money was repaid by 25 Mar. 1701 the provisions for her jointure should remain in place. It passed its third reading on 12 Mar., with 16 dissentients entering a protest, including four bishops.

In the Commons the duchess petitioned on 14 Mar. 1700, alleging that she and the duke had executed an agreement, ‘whereby the duke obtained his desired advantage, and hath fully enjoyed the benefit thereof’, and praying to be heard by counsel against the bill, which received a first reading on 16 Mar. 1700. Sir Edward Seymour^‡ and Sir Christopher Musgrave^‡ moved that Germaine should be summoned as the person ‘with whom the duchess had an adulterous conversation’. Vernon thought ‘the friends to the bill suspected that this was a trick to make it miscarry, and yet they were puzzled how to oppose it, since it would not look well to acquit Germaine and punish the duchess’. The question therefore passed:

Those who were for summoning Germaine talk as if they intend that Germaine shall be condemned to pay the duchess the £10,000 which by the bill she was to secure from the duke within a year, being her marriage portion. If this amendment should be made in the bill and it were like to pass so, the duke of Norfolk would have a good deal of reason to be satisfied with it but his friends apprehend the Lords may boggle at it, and let the bill drop rather than pass it so amended. Northants. RO, Montagu (Boughton) mss, 48/46.

Of the committal debate on 19 Mar., Vernon noted that it was opposed by Musgrave, William Thursby^‡, and Simon Harcourt, the future Viscount Harcourt, who doubted ‘whether it were allowable to differ from the constitutions of the Church restrains the liberty of remarrying’. However, few Members opposed the bill, and even Jack Howe^‡ supported it. Montagu (Boughton) mss, 48/47. On 20 Mar. the duchess petitioned for the names of the duke’s witnesses but failed to get their places of abode. When the committee of the whole dealt with the bill on 25 Mar. with Sir Rowland Gwynne^‡ in the chair, he reported that the duke had produced witnesses, but that the duchess only had counsel heard against the bill. Luttrell reported that the Commons sat until 9 p.m. on the bill, and Yard that the ‘duchesses counsel made no defence, only desired more time, which the House would not allow of’. Luttrell, Brief Relation, iv. 627; Beinecke Lib. OSB mss fc 37, vol. 3, no. 27. At the third reading stage on 27 Mar. three riders were rejected by the House and the bill passed without amendment, receiving the royal assent on 11 April. In the course of the proceedings a complaint was made on 25 Mar. 1700 against a ‘scandalous libel’, A Letter to a Friend concerning the Duke of Norfolk’s Bill, which reflected on Norfolk and those who voted for the bill as ‘the most immoral of the House’. Luttrell, Brief Relation, iv. 627. In response, the duke ordered ‘the proceeding and other papers’ relating to the case to be published, ‘with a prohibition that no other person do presume to print the same’. This work was advertised for sale later in April 1700. Post Man, 30 Mar.-2 Apr. 1700; Post Boy, 18-20 Apr. 1700.

Financial distress, which could be alleviated by a second marriage, was seen as one of Norfolk’s prime motives. On 16 Feb. 1700 Vernon surmised that Peterborough was ‘so busy in this matter upon an expectation that the duke will marry his daughter’. Vernon-Shrewsbury Letters, ii. 433. Cary Gardiner agreed that Norfolk wished to remarry, but believed it would be to ‘a great fortune of £1500 a year £20,000 in money which is my Lady Coventry’, the widow of Thomas Coventry, earl of Coventry. Verney ms mic. M636/51, C. Gardiner to Sir J. Verrney, n.d. [endorsed 29 Feb. 1700]. There was also the question as to whether, given a satisfactory settlement, the duchess might have favoured a divorce, allowing her to marry Germaine. His divorce apart, in February Norfolk was forecast as being in favour of retaining the East India Company as a corporation, and on 10 Apr. he entered a dissent to the resolution not to adhere to the Lords’ amendments to the land tax bill.

Norfolk may have been present on the opening day of the 1701 Parliament, 10 Feb., when he was named to the committee for privileges, but he was not noted as attending in the presence list until the following day. He last attended on 24 Mar., nine days in all, just under 9 per cent of the total. On 22 Mar. he presented a petition to the House announcing that ‘hindered by sickness and other accidents’, he would be unable to repay Lady Norfolk’s marriage portion by 25 Mar. as required in his divorce act, so he sought to amend the divorce act in order to give himself further time. Leave was granted after his petition was debated on 24 March. HMC Lords, n.s. iv. 279; Luttrell, Brief Relation, v. 31. No further action was taken for Norfolk died suddenly in his sleep on 2 Apr., an autopsy revealing that his internal organs were well but ‘destroyed with coagulated blood' suggesting that Evelyn was probably correct in attributing his death to apoplexy. HMC Rutland, ii. 167; Luttrell, Brief Relation, v. 35; Norf. Lieutenancy Jnl. 1676-1701, p. 158; Evelyn Diary, v. 453. Six months later his discarded duchess married Germaine. Luttrell, Brief Relation, v. 99. Norfolk was succeeded by his Catholic nephew, who inherited £12,000 a year ‘which is but the third part of what that family had’, and whose religion debarred him from the earl marshal's place which was exercised instead by Carlisle, ‘being the next of that family as is Protestant’. Verney ms mic. M636/51, Gardiner to Verney, 3 Apr. 1701.

Norfolk’s chief trait appears to have been his unbounded extravagance. In July 1676 Yarmouth reported that ‘his garden’ had hosted a gathering of 50 coaches with ‘the walks as full as Spring Gardens.’ Agnew, 250. On 1 Aug. 1697, like many of the court, Norfolk was at Tunbridge where he ‘bowls and dances at all’, Thomas Bruce, 2nd earl of Ailesbury having previously referred to balls given by Norfolk at the bowling greens at Tunbridge. Add. 75369, Crawford to Halifax, 1 Aug. 1697; Ailesbury Mems. 358. On 4 Nov. 1699 Norfolk attended a ball hosted by Princess Anne, ‘in scarlet embroided with gold’. Verney ms mic. M636/51, E. Adams to Sir J. Verney, 4 Nov. 1699. Inherited indebtedness and his own extravagance led to financial difficulties. He had to borrow £250 against the militia stock in March 1700 ‘to carry on the business I am now about in Parliament, (which is very expensive).’ Norf. Lieutenancy Jnl. 1676-1701, p. 155. As Cary Gardiner noted after his death, Norfolk had been in such financial straits that he hired his horses by the week from his own coachman: ‘there is not a servant goes into mourning for him and he is buried by charity, for he owes more than I can name, but he is like to undo all his servants, as well as many more’. Such was his status that he ‘puts more in mourning than any six noblemen and yet dies in all the dishonour imaginable’. Verney ms mic. M636/51, Gardiner to Verney, 10 Apr. 1701.