EGERTON, Thomas (1542-1617)

The illegitimate son of a Cheshire squire, Egerton was raised from infancy in the household of his father’s brother-in-law, Thomas Ravenscroft, a middle-ranking member of the gentry settled at Bretton, in nearby Flintshire.65 Knafla, 4; Vis. Cheshire (Lancs. and Cheshire Rec. Soc. lviii), 115. Following the death (in about 1553) of his foster father, the nine-year-old Egerton became the responsibility of Ravenscroft’s eldest son, George Ravenscroft^‡, knight of the shire for Flintshire in 1563 and a servant of the Stanley earls of Derby. It was probably George who arranged for Egerton to be educated at Brasenose, Oxford, which college drew many of its students from Cheshire, Lancashire and Yorkshire.66 J. Buchan, Brasenose Coll. 18.

Egerton subsequently trained for the law, becoming a barrister in 1572. An outstanding talent, he soon attracted several influential clients, among them the chamberlain of the county palatine of Chester, Henry Stanley^†, 4th earl of Derby, who appointed him to several local offices and left him a valuable cup in his will.67 Knafla, 8-9; B. Coward, The Stanleys, Lords Stanley and Earl of Derby, 1385-1672, p. 53 His successes at the bar, sometimes against the crown, quickly brought him to the attention of Elizabeth I who, in 1581, appointed him her solicitor general. An able chose, he distinguished himself during the trials of Mary, queen of Scots and the Babington conspirators (1586). His reward, aside from royal favour, was considerable wealth. Beginning in 1584, Egerton purchased a considerable estate in his old stamping ground of Cheshire and north Wales. During the early 1590s he also bought up property in Warwickshire.68 Knafla, 17, 23-4.

Egerton entered Parliament for the first time in 1584, serving as senior knight for Cheshire. He again represented Cheshire in 1586-7, but failed to secure a seat ahead of the 1589 Parliament, whereupon he was summoned by writ of assistance to serve in the Lords instead. Though returned for Reading shortly thereafter (the previously elected Member having opted to sit for a Welsh county instead), the Lords refused to release him from his duties.69 D’Ewes, Jnls. of all the Parls. (1682), 441-2. On being promoted to attorney general in 1592, Egerton became ineligible for re-election to the Commons, and therefore, during the 1593 Parliament, he again served as a legal assistant in the Lords.70 LJ, ii. 176a.

High office under Elizabeth, and the Parliament of 1597-8

Following the death of the 4th earl of Derby in September 1593, the queen offered Egerton the chamberlainship of the county palatine of Chester. Egerton was initially reluctant to accept this position, as his appointment was bound to antagonize Ferdinando Stanley^†, 5th earl of Derby, who regarded the chamberlainship as an hereditary adjunct to his earldom. However, the queen did not entirely trust Ferdinando, as his mother had a distant claim to the throne and he himself had recently become the focus of a Catholic plot to depose her. Although Ferdinando had personally turned in the principal plotter, for which he had received official thanks, Elizabeth preferred to reduce the chamberlainship to its bare judicial functions, and to confer it upon Egerton, who, after demonstrating that incumbents prior to 1559 had been non-noble, was formally appointed in March 1594. As Egerton had predicted, Ferdinando, who died only seven weeks later, bitterly resented being denied the chamberlainship.71 Egerton Pprs. 192; HMC Hatfield, iv. 446; HEHL, EL163; L. Manley, ‘From Shakespeare’s Men to Pembroke’s Men’, Shakespeare Quarterly, liv. 273-4, 279-80. For a list of chamberlains, see G. Ormerod, Hist. of the Co. Palatine and City of Chester ed. T. Helsby, i. 56. His anger seems to have been shared by his heir, William Stanley, 6th earl of Derby.

Shortly after advancing him to the chamberlainship of Chester, Elizabeth knighted Egerton and appointed him master of the Rolls, which office had been vacant for over a year. Junior only to the lord keeper/lord chancellor, the master of the Rolls controlled much of the work of the Court of Chancery and enjoyed an annual income of about £1,500. Egerton threw himself into his new duties with characteristic energy, and in May issued ordinances for reforming abuses in the court.72 CSP Dom. Addenda 1580-1625, p. 376. For the annual income of this office, see G. Aylmer, King’s Servants, 212. He clearly made a favourable impression, for when Lord Keeper Puckering (Sir John Puckering^‡) died in April 1596, Elizabeth immediately conferred on him the headship of Chancery. Contrary to precedent and popular expectation, she also allowed him to retain the Rolls in commendam.73 For the expectation that a successor would be appointed, see T. Birch, Mems. of Q. Eliz. i. 488.

It was probably not long after his elevation that the new lord keeper remarried. His second wife, Lady Wolley, was a wealthy widow, whose dowry included several properties in Surrey. Egerton entrusted the care of these newly acquired lands to his wife’s brother, George More^‡ of Loseley, with whom he struck up a close friendship.74 Knafla, 31. At around the same time he also obtained a lease of York Place, the Thames-side residence near Whitehall which had been rented by his predecessor. However, as a condition of the lease he agreed to provide the owner of this property, the archbishop of York (Matthew Hutton^*), with ‘a good and convenient house’ within half a mile of the palace of Westminster whenever Parliament met.75 Egerton Pprs. 221, 223; HEHL, EL658.

It was not long before Egerton must have been required to make good this promise, as a fresh Parliament assembled in October 1597. Ahead of this meeting, on 27 Aug., the Privy Council, of which Egerton was now a member, issued a letter requiring all sheriffs to ensure that no ‘unmeet’ men were elected to the Commons.76 APC, 1597, pp. 361-2. During the previous Parliament, in 1593, the Commons had, on their own authority, upheld the election of Thomas FitzHerbert, who had been outlawed for debt. There is no direct evidence that Egerton was behind the issue of this highly unusual circular. However, the Commons’ backing of FitzHerbert, and their extension of the remit of the committee for privileges to include the examination of disputed elections, posed a direct challenge to the lord keeper’s right to judge the validity of election returns. Egerton was in no doubt that this duty properly belonged to him, for when, the following month, the 4th earl of Huntingdon (George Hastings^*) complained that the borough of Leicester had returned two non-residents, despite the Council’s letter, he promised to investigate the matter further.77 HMC Hatfield, iv. 188. In the event, Egerton took no action, probably because the men concerned – George Parkins^‡ and John Stanford^‡ – were both sons of leading Leicester townsmen. However, he evidently used his authority to quash the returns of three other Members, Sir William Harcourt^‡, John Lyttelton^‡ and Henry Ferrers^‡, all of whom stood outlawed for debt.78 Ibid. xiv. 25.

Although now a significant landowner, Egerton had, as yet, little parliamentary patronage at his disposal. Nevertheless, at Brackley, in Northamptonshire, his protégé and fellow Cheshire lawyer, Ranulphe Crewe^‡, was returned on the interest of Alice, dowager countess of Derby, who was shortly to become Egerton’s third wife. Moreover, at Callington, in Cornwall, the lord keeper’s youngest son John Egerton^* (later 1st earl of Bridgwater) also found a seat, probably with the help of the 3rd marquess of Winchester (William Paulet^†), who habitually made available seats in the borough to government nominees. It seems unlikely that the lord keeper played a direct role in securing the return of his eldest son, Thomas Egerton^‡, as junior knight for Cheshire, as the standing of the Egerton family in Cheshire was now so high that any such intervention would probably have been unnecessary. He certainly did nothing to support Ellis Wynn^‡, whose application for support to become knight of the shire for Caernarvonshire, was rebuffed by one of the lord keeper’s secretaries.79 J.E. Neale, Elizabethan House of Commons, 297-8; Cal. Wynn Pprs. 36.

One of the chief responsibilities of the lord keeper, at the start of a Parliament, was to acquaint the members of both Houses with the purpose of their meeting. Despite being new to the role, Egerton discharged this duty on 24 Oct. with characteristic eloquence. After reminding his listeners that they had been summoned to vote taxes for the continuing war with Spain, he tried to persuade the Commons to give generously. Any man, he said, who sought to hoard treasure in time of danger was like ‘him that would busy himself to beautify his house when the city where he dwelleth were on fire’, or who decked out his cabin ‘when the ship wherein he saileth were ready to be drowned’. ‘To give’, he added, ‘is to give to ourself’.80 Procs. in Parls. of Eliz. I ed. T.E. Hartley, iii. 187.

Not being a peer himself, Egerton was necessarily restricted in what he could say or do in the Lords. Indeed, his role was largely confined to enforcing procedural rules, providing advice on points of law, and determining the order of business. This latter task required a degree of advanced planning. During the early Jacobean period, and probably in the late Elizabethan period too, Egerton made a habit of arriving early to give instructions to the clerk.81 E.R. Foster, Painful Labour of Mr. Elsyng, 14. It also involved liaising with the crown’s chief ministers, primarily Robert Cecil^* (later 1st earl of Salisbury). When, in July 1610, Egerton learned that Cecil would not be present in the chamber to hear a bill for the king’s safety receive its first reading, he wrote to the chief minister asking whether he should proceed regardless or wait until Cecil had returned.82 HMC Hatfield, xxi. 227-8.

Although Egerton made little recorded impression on the Lords during the Parliament of 1596-7, he certainly caused a stir in the Commons. In November he took offence after the lower House sent him a message ‘requiring’ him to revoke a subpoena issued by Chancery to one of their Members. Not being a servant of the Commons, he declined to give an immediate answer.83 M.F. Keeler, ‘Emergence of Standing Committees for Privileges and Returns’, PH, i. 34. The following month, the Commons belatedly noticed the absence of three of their Members, whose names had not been recorded in the book of returns compiled by the lord keeper’s officer, the clerk of the crown in Chancery. An inquiry was instituted by the committee for privileges and, after a preliminary report, it was resolved that precedents be sought and examined.84 D’Ewes, 570, 572. The Commons were clearly preparing themselves for a confrontation with Egerton, but in the event nothing more was heard of the matter before Parliament was dissolved in February 1598. The reason is unclear, but it may be significant that Egerton’s brother-in-law, Sir George More^‡, and his favourite lawyer, Ranulphe Crewe, were both members of the Commons’ privileges committee.

The fall of Essex and the Parliament of 1601

It seems likely that Egerton’s friends in the Commons helped avert a confrontation with the lord keeper. Over the following few years, however, fortune did not look so kindly on Egerton. First, the court of Chancery, which operated on the basis of equity rather than the common law, suffered a severe blow to its standing. In 1598 the judges of the common law courts ruled that the lord keeper was not entitled to subpoena parties in causes that had already been decided at common law. As a result, the volume of Chancery business declined sharply during the final years of Elizabeth’s reign.85 Knafla, 158, 163-4. Secondly, Egerton began to worry that he had overreached himself financially, having recently snapped up a number of properties in Shropshire and Cheshire from the Stanley and Talbot families.86 E. Hopkins, ‘Re-leasing of the Ellesmere Estates, 1637-42’, Agricultural Hist. Rev. x. 14. In March 1599 he confided to his former brother-in-law, Ralph Ravenscroft, that ‘my debts … hang heavily upon me’.87 HEHL, EL65. However, these troubles were as nothing compared with the personal misery that soon engulfed Egerton. In August 1599 his eldest son Thomas, who had accompanied the 2nd earl of Essex (Robert Devereux^†) to Ireland, was killed in an ambush by Irish rebels. Five months later, illness robbed him of his second wife. Egerton was so grief stricken that he shut himself away and instructed another judge to take his place in Chancery pro tem.88 Letters and Memorials of State ed. A. Collins, ii. 164. His woes were exacerbated by the fact that in October 1599 he was required to take into custody his friend Essex, who had returned to England without the queen’s permission. Essex remained a prisoner at York House for nearly six months, to the dismay of the lord keeper, who resented the fact that his home had become a gaol. Following the release of Essex in March 1600, Egerton was appointed one of his judges at his trial. Despite having previously assured the earl that ‘you want not friends to remember and commend your former services’, he called for Essex to be heavily fined, stripped of all his offices and imprisoned in the Tower.89 J. Campbell, Lives of the Lord Chancellors, ii. 213; Letters and Memorials of State, ii. 200.

Although he was heartbroken at the death of his second wife, Egerton was now free to remarry if he wished. Given the crisis in his finances, marriage to a woman of means was clearly desirable. The obvious choice was Alice, dowager countess of Derby. Seventeen years his junior, Alice was both beautiful and the owner of a considerable estate in Northamptonshire. Moreover, she had urgent need of Egerton’s legal assistance, being then locked in a bitter dispute with her brother-in-law, the 6th earl of Derby, over the inheritance to the Stanley estates.90 V. Wilkie, ‘“Such Daughters and Such a Mother”: the Countess of Derby and her Three Daughters’ (Univ. California Ph.D. thesis, 2009), 58-9. After assuring Alice that he had no designs on her property, and that he admired her solely for her ‘virtues and worth’, Egerton married Alice in October 1600.91 Warws. RO, CR136/B/107; HEHL, EL1001.

Egerton’s marriage to the dowager countess of Derby coincided with the news that he was about to be deprived of the mastership of the Rolls. An active master was needed for the smooth running of Chancery, but Egerton was unable to fulfil this role, having been in poor health for some time.92 Letters and Memorials of State, ii. 149, 150; HMC Hatfield, x. 70; Letters of Philip Gawdy ed. I.H. Jeayes, 109. By early February 1601 Egerton was resigned to the prospect of losing the Rolls, having ‘had some schooling about it’. His only concern was that his successor should not be Sir John Hele^‡, whom he detested.93 Chamberlain Letters, i. 117. However, he was spared the need to surrender this lucrative position by Essex’s rebellion, during the course of which he helped convey a message from the queen to the earl, only to be detained at Essex House against his will.94 Letters and Life of Francis Bacon ed. J. Spedding, ii. 307-8. In the aftermath of this episode, Elizabeth said nothing more about depriving Egerton of the Rolls. Stripping him of this office would have been a poor reward for the loyalty he had shown her during the crisis.

Seven months after Essex’s rebellion, a fresh Parliament was summoned. As in 1597, Egerton’s parliamentary patronage was slight. Aside from Brackley, which returned his secretary, John Donne^‡, on his wife’s interest, only one borough accepted his nominee. This was Oxford, where he had recently been appointed high steward. The Member concerned was his son-in-law Francis Leigh^‡ of King’s Newnham, in Warwickshire. In addition, his youngest son John – now his heir apparent – was returned for Shropshire, while his servant John Panton^‡, recorder of Denbigh, secured election for Denbigh Boroughs on his own interest.

Egerton delivered the lord keeper’s customary address at the start of the Parliament. The text of this speech has not survived, but from the report transmitted to the Commons it would seem to have been standard fare: as usual, the Commons were asked to provide money for the war with Spain and to eschew the making of new laws in favour of revising old ones.95 J.E. Neale, Eliz. and Her Parls. ii. 372. More noteworthy is the fact that, shortly after Parliament assembled, the Commons suppressed, on their own authority, the return of Sir Andrew Noel^‡ for Rutland. This was a provocative act, made more so by the fact that Sir Edward Hoby‡, who had taken a lead in the investigation of the three missing Members in 1597, recommended that the Speaker, John Croke^‡, direct his warrant for a new writ to the clerk of the crown in Chancery, thereby bypassing the lord keeper, who normally issued such warrants himself. A short while later the Speaker, acting on this advice, proceeded to issue warrants to the clerk of the Crown in respect of two Welsh constituencies which had still to return Members, only to be told that the lord keeper wished the warrants to be directed to him instead. Not knowing what to do, Croke referred the matter to the Commons on 13 November.96 Procs. in Parls. of Eliz. I, iii. 314, 316.

In the ensuing debate, Egerton’s supporters were led by the lord keeper’s former brother-in-law Sir George More, who declared that ‘it would be more honour to the House to direct a warrant to the lord keeper than to an inferior minister in Chancery’. More was supported by Sir Francis Hastings, whose first wife was the widow of the lawyer George Vernon^‡, son of Dorothy Vernon, née Egerton. Hastings announced that he had been with the lord keeper the previous day, and that Egerton desired nothing more than that he should be ‘our immediate officer’. Hastings was followed by one of the leading law officers in the Commons, Sir Francis Bacon^* (later Viscount St. Alban), who agreed with More that the honour of the lower House demanded that its warrants be directed to the lord keeper rather than to ‘a base, petty or inferior servant’. However, the Commons decided to investigate the precedents before reaching a decision.97 Ibid. 346-8.

The following day Egerton increased the pressure on the Commons. Through Secretary of State John Herbert^‡ he informed the lower House that he did ‘greatly respect the majesty and gravity of this assembly’. However, if any precedents had come to light which demonstrated that the Commons had acted ‘improvidently’ or contrary to the most ancient use’ he urged the House to ignore them, ‘and decree that which might be a sufficient warrant unto him to put in execution our commandments’. Egerton had good reason to suppose that the Commons had uncovered precedents which showed that the lower House had sometimes directed its warrants to the clerk of the crown rather than the lord keeper. Earlier in that same Parliament, the House had bypassed the lord keeper after Secretary Herbert plumped for Glamorgan in preference to Wallingford. In the event, it was not the issue of precedence so much as the intervention of the solicitor general, Thomas Fleming^‡, which seems to have proved decisive. Fleming announced that the clerk of the crown ‘is our immediate officer,’ and that it was therefore perfectly appropriate for the Commons to issue their warrants to him. When the matter was put to the vote a short while later, Egerton’s supporters were narrowly defeated.98 Ibid. 352-4.

The seriousness of this setback cannot have been lost on the lord keeper. His attempts to prevent the House of Commons from claiming the right to determine its own membership had been dealt a heavy blow. Despite having prevented three outlaws from taking their seats in the previous assembly, he had now lost full control over the clerk of the crown in Chancery, who would be required in future, while Parliament was sitting, to issue writs of election without reference to him. Taken alongside the damage recently inflicted on Chancery by the Common Law courts, this reverse must have seemed intolerable. However, there was little Egerton could do about it in the remainder of this Parliament, which was dissolved five weeks later.

By May 1602 there were renewed calls for Egerton to be replaced as master of the Rolls. Afflicted by gout, he often kept to his chambers, thereby hampering the business of Chancery.99 Chamberlain Letters, i. 147; HMC Hatfield, xii. 583. However, these demands were ignored by the queen who, over the summer, spent three nights at Harefield, which property Egerton had purchased the previous year. Situated in north-west Middlesex, Harefield provided Egerton with a country home close enough to London to enable him to return speedily to the capital if required, but far enough away to allow him and his family to breath clean air.100 For Egerton’s appreciation of the healthy air at Harefield, see HMC Hatfield, xvi. 223.

The accession of James I, 1603

Elizabeth’s death on 24 Mar. 1603 automatically put an end to Egerton’s authority as lord keeper. At a Council meeting held that morning, Egerton, being a mere knight, therefore offered to vacate his accustomed seat and move further down the table. However, his fellow councillors insisted that he take his usual place.101 Letters and Life of Francis Bacon, iii. 72n. This was wise, for on 5 Apr. the new king, James VI of Scotland, instructed Egerton to remain in post and to continue using, for the time being, the seal issued by Elizabeth.102 Hardy, 68.

Egerton understandably felt apprehensive about the accession of the new monarch, as he had played a leading role in the prosecution of James’s mother, Mary, queen of Scots. Moreover, unlike Sir Robert Cecil and Lord Henry Howard* (later earl of Northampton), both of whom had conducted a clandestine correspondence with James and his ministers over the last few years, he had no grounds for assuming that he would not be discharged. On hearing that James had been informed that he was haughty and proud, he therefore dispatched his son John north to protect his interests. However, John fell ill en route, whereupon Egerton wrote in desperation to Sir Thomas Chaloner^‡ and Lord Henry Howard, both of whom had headed north. His fears were soon revealed to be entirely unfounded. Chaloner replied that the king had certainly not formed an ill opinion of him, while Howard reported that the lord keeper’s letter of introduction had so pleased James that it had been read twice.103 Egerton Pprs. 359-60, 362, 364, 365.

Egerton met the king for the first time on 2 May 1603, at Broxbourne, in Hertfordshire. Eight days later, he was formally reappointed to the Council.104 Annales ed. E. Howes, 822; SO3/2, f. 4. He swiftly learned to ingratiate himself with his new monarch. According to Robert Spiller, an agent in the pay of the king of Spain, ‘he always leans towards the direction of the king’s preference’. However, any relief he felt at having survived the transition to a new monarch was soon tempered by the realization that his position was not entirely invulnerable. James was under tremendous pressure to find key positions in the English administration for prominent Scots, and it was not long before he noticed that Egerton was both master of the Rolls and lord keeper. In mid May he therefore conferred the former office on one of his chief Scottish servants, Edward Bruce, Lord Bruce of Kinloss [S].105 Trevelyan Pprs. III ed. W.C. Trevelyan and C.E. Trevelyan (Cam. Soc. cv), 48; Dugdale, appendix, 101. Egerton was aghast, as he had been relying upon his lifetime interest in the mastership of the Rolls to provide for him in his old age. He protested that, despite 24 years of service to the crown, he had received little by way of reward and incurred considerable expense. For example, the bill for housing his former prisoner, the 2nd earl of Essex, had come to more than £1,000, while the entertainment of the late queen at Harefield had cost ‘more than I will remember’.106 HEHL, EL163. Egerton may have felt all the more aggrieved due to the fact that his fellow pluralist, Cecil, was permitted to retain the mastership of the Wards after James sought to deprive him of it.107 ROBERT CECIL.

Although there could be no question of reinstating Egerton, it was obvious to James that the lord keeper needed to be mollified. Accordingly, shortly thereafter, Egerton became the first custodian of the great seal in more than half a century to be granted a peerage. Formally invested with his new honour at Hampton Court on 21 July 1603, Egerton assumed the title Baron Ellesmere, after a manor in Shropshire he had recently been granted by the king.108 ‘Camden Diary’ (1691), 2; Knafla, 35. In addition, Egerton was appointed lord chancellor, which office had lain in abeyance since the death of Sir Christopher Hatton^‡ in 1591. The formal ceremony took place on 24 July, on which day the king was also crowned.

The new Lord Ellesmere had good reason to feel satisfied with this outcome. In return for resigning the mastership of the Rolls, he had not only been promoted but also raised to the peerage. Elizabeth, who had come so close to depriving him herself, would never have been so generous. However, Egerton was not out of the woods yet, for in October 1603 he was replaced as chamberlain of Chester by the 5th earl of Derby. Mortified, he protested to James that, coming so soon after his removal from the Rolls, this latest loss of office ‘will throw upon me an imputation of his Majesty’s favour and disgrace’.109 HEHL, EL163. This time, however, James, wisely disregarded Egerton’s objections, being more concerned to ensure the loyalty of Derby than to salve the wounded pride of his new lord chancellor.

In November 1603 Ellesmere presided over the first treason trials of the new reign, held at Winchester. Appointed lord high steward for the occasion, he passed sentences of death on all the principle conspirators, including Henry Brooke^‡, 11th Lord Cobham, and Thomas Grey^‡, 15th Lord Grey of Wilton.

The parliamentary session of 1604

At the beginning of 1604 the king made arrangements to summon the first Parliament of his reign. James, who had no previous experience of England’s representative assembly, was persuaded to issue a proclamation on the subject of elections. This document, the like of which had never been issued by Elizabeth, was almost certainly the brainchild of Ellesmere, its draftsman. It ordered that no unsuitable men were to be elected, including papists, sectaries and outlaws. It also ordered all returns to be certified in Chancery. Any indentures found to contravene the king’s proclamation would be rejected ‘as defective and insufficient, and the city or borough to be fined for the same’.110 Egerton Pprs. 384-6; Stuart Royal Proclamations, I ed. J.F. Larkin and P.L. Hughes, 66-70.

Ellesmere excluded from this proclamation any specific prohibition regarding the election of non-residents. Arguably this was because the election of non-residents was already illegal, and because the proclamation required all enfranchised boroughs to hold their elections ‘according to the law’. However, the omission may suggest that Ellesmere did not wish to draw attention to a widespread practice that he himself encouraged by example. At Oxford he once again helped his non-resident son-in-law Sir Francis Leigh to a seat. He also assisted the London-based lawyer Robert Hitcham^‡ to obtain one of the burgess-ships at King’s Lynn, Norfolk, of which borough he had recently become high steward. Another beneficiary of Ellesmere’s limited patronage was his kinsman William Ravenscroft^‡, who also lived in London but was returned for Old Sarum, a Wiltshire borough controlled by the 3rd earl of Pembroke (William Herbert^*). Ellesmere was presumably also responsible for returning the London lawyer Thomas Crewe^‡ for the Staffordshire borough of Lichfield, where he was recorder. Crewe, the son of a fellow Cheshireman, was the brother of Sir Ranulphe Crewe^‡, whom Ellesmere had favoured with a seat (at Brackley) in 1597. In addition, it was probably Ellesmere who persuaded the newly enfranchised Essex borough of Harwich to return both his servant John Panton^‡ and the Welsh lawyer Thomas Trevor^‡ (both non-residents) shortly after the Parliament began. He was chairman of the local bench, and had recently played a key role in obtaining for the borough a new charter.

Ellesmere’s purpose in drafting the 1604 proclamation was to ensure that Chancery retained the ultimate right to determine the membership of the Commons, which right he had been trying to assert ever since 1597, with mixed results. By enlisting the public support of the king, it seemed that he had now played a winning hand. Were the Commons to uphold the election of an outlaw, as they had in 1593, they would be opposing not only the wishes of the lord chancellor but also those of James. In such a situation, Ellesmere could feel confident of success. He would then have his revenge for the humiliation he had suffered over the Speaker’s warrants in 1601.

Ellesmere did have to wait long before the Commons played right into his hands. Shortly after Parliament opened, in March 1604, the lower House discovered that the return for Buckinghamshire of Sir Francis Goodwin^‡ had been quashed on grounds of outlawry. In Goodwin’s place, the sheriff – a man with Chancery connections - had returned the privy councillor, Sir John Fortescue^‡. On 28 Mar. the Commons appealed to the king, who rejected their complaint on the grounds that ‘by the law this House ought not to meddle with returns, being all made into the Chancery’. In this James was supported by the lord chief justice of King’s Bench, Sir John Popham^‡, and by the Privy Council, whose members were naturally keen to defend Fortescue, one of their own number. However, the Commons protested that the king had been misinformed. One Member pointedly remarked that, unless Goodwin was permitted to take his place, ‘a lord chancellor may call a Parliament of what persons he will, by this course’. Even Ellesmere’s protégé and unofficial spokesman in the Commons, Francis Moore^‡, defended the return of Goodwin.111 A. Thrush, ‘Commons v. Chancery’: the 1604 Bucks. Election Dispute Revisited’, PH, xxvi. 305-6; Lansd. 486, ff. 7v-8.

Ellesmere took no public part in this quarrel. He had no need to do so, since the king and Council had quickly rallied to his cause. However, any sense of triumph he may have felt was soon dashed, for during early April James began to have second thoughts. The king had summoned Parliament in order to effect a statutory union between England and Scotland, but found to his dismay that the Commons fixed their attention on the Buckinghamshire election instead. (When, on 31 Mar., Sir William Maurice^‡ attempted to begin a debate on the Union in the lower House, he was ignored.) He also worried what would happen if the Commons did not get their way. Far from helping to bring about the Union, they might prove to be obstructive. On the other hand, were James to concede that they had as much right as Chancery to judge the validity of disputed election returns, the Commons might prove so grateful that they gave the Union their full support. Faced with a choice between the Union and his lord chancellor, James, not surprisingly, opted for the former. On 11 Apr. he announced that the Commons were entitled to help judge their own returns and that Chancery’s powers were available to the lower House while Parliament sat.112 Thrush, 307-8; CJ, i. 168b.

On paper the king’s decision was a compromise solution, but in reality it represented total defeat for Ellesmere, who was furious. As late as 1611 the lord chancellor complained that the Commons had ‘received, allowed and justified to be lawful members of the Parliament’ outlaws who, by law, could serve neither as witnesses nor jurors, and were incapable of owning goods. Such men were ‘unfit to be of so grave a senate and council, and cannot be deemed meet to be lawmakers’. He was also outraged that the Commons had assumed to themselves the authority of a court of record, whereas in fact ‘the lower House is not any court of record, nor have the record of any writs or returns of any other record remained with them, whereupon they may judge’.113 Knafla, 277. However, by the time the king realized his mistake, it was too late.114 Thrush, 307-8. The genie, once released, could not be put back into the bottle.

While the Buckinghamshire election dispute unfolded, Ellesmere resumed his familiar role as the Lords’ presiding officer. However, now that he was a peer, he was entitled to speak, vote and serve on committees if he wished. He could also hold the proxy vote of another peer, and indeed was assigned the proxy of the 3rd Lord Cromwell (Edward Cromwell^*) sometime after 14 May.115 LJ, ii. 263b. For the date, see EDWARD CROMWELL. Unless he was ill, the House’s presiding officer was expected to attend every sitting. Ellesmere was no exception. However, the clerk forgot to record his presence on the morning of 21 June, when he conveyed a message to the House from the king.116 LJ, ii. 325a, 326a.

Ellesmere did not formally take his seat as a baron until 8 May,117 Ibid. 295a. seven weeks after Parliament opened. He nevertheless took full advantage of his right to sit on committees from the outset. On 26 Mar., one week after Parliament opened, he was among those peers ordered to confer with the Commons about a proposal to buy out wardship put forward on behalf of Robert Cecil, now Lord Cecil. The following month he was appointed to help discuss the Union with representatives from the Commons. At this meeting, held on the afternoon of 15 Apr., Ellesmere opened proceedings. He announced that the king expected Parliament to consider first what name to give the united realm of England and Scotland, and then proceed to discuss how to unite the laws and governments of his two kingdoms.118 Ibid. 266b, 277b.

Ellesmere seems to have chosen his committee appointments carefully. Those bodies to which he was named normally dealt with matters of significance to the crown, such as wardship and the Union, or the grant of tunnage and poundage.119 Ibid. 284a, 303a, 309b, 323a. However, on 16 Apr. Ellesmere was also appointed to help consider a bill to prevent the diminution of bishoprics and dilapidations in the same. This measure was of little direct interest to the crown. However, Ellesmere and his fellow committee members were also required to examine a measure to confirm the letters patent granted to the king’s principal Scottish servant Sir George Home, who had recently been appointed chancellor of the Exchequer. Ellesmere evidently chaired this committee, as he reported both bills to the House the next day.120 Ibid. 280a.

Ellesmere acted as a reporter on several more occasions. On 30 Apr., for example, he gave an account of a meeting with the Commons on the Union, held shortly after the judges declared that the creation of a new state called Great Britain would necessarily invalidate the laws of both England and Scotland. In June he also reported a meeting with the Commons at which a short tract by the bishop of Bristol, John Thornborough^*, implicitly criticizing the Commons for opposing the Union, was debated.121 Ibid. 287b, 314a; Letters and Life of Francis Bacon, iii. 191. As Speaker, it is not surprising that Ellesmere was named to the committee appointed on 25 May to inspect the clerk’s Journal for the purpose of ensuring that the details regarding the House’s debates and resolutions in respect of the disputed barony of Abergavenny had been entered correctly.122 LJ, ii. 307a.

Ellesmere chaired the committee for the bill to ensure that the laws against Catholics were enforced. Following James’s accession, the penal laws had been widely disregarded, to the delight of many recusants, who hoped that this was the prelude to formal toleration. Ellesmere was horrified, for although in his youth he had been an ardent Catholic – his entry to the bar had actually been delayed because of his reluctance to conform123 LI Black Bks. i. 370-2. – he had come to regard popery as dangerous. He therefore supported the bill, which was entrusted to his care on 19 June. Four days later, he reported that he and his fellow committee members had found the bill to be so defective that they had drafted a new one, which he proceeded to lay before the House. This fresh bill received a third reading on 25 June, when it was fiercely attacked by the 2nd Viscount Montagu (Anthony Maria Browne^*), a devoted Catholic, who also took the opportunity to criticize the Protestant character of the English Church. Not surprisingly, his speech drew an angry response not only from the bishops but also from Ellesmere. As Speaker of the Lords, Ellesmere explained, he could hardly be expected to stand by and allow any peer ‘to inveigh generally against the whole state of religion established, and to speak generally in maintaining the popish religion, so much derogating as it doth from the king’s Majesty’s royal and supreme authority’.124 LJ, ii. 313b, 324b, 326b, 328a.

Aside from the committee for the bill to enforce the penal laws, which did not enjoy royal sanction, Ellesmere served on no private bill committees. This may have been because there were none that impinged upon his personal interests, but he may also have considered that he was busy enough already. Private bills were nevertheless valuable to Ellesmere for the fees they generated. In 1610 the corporation of Exeter paid him no less than £10 in connection with a bill to protect a local weir.125 Devon RO, ECA Act Bk. 6, f. 207. Over the course of the 1604 session, Ellesmere was paid no less than £575 by the promoters of private bills. This was an enormous sum, but not all of it was profit. As Speaker of the Lords, Ellesmere was doubtless expected to entertain many of his fellow peers at York House, the cost of which fell to him rather than the crown. Payments to his clerk of the kitchen during the first six months of 1604 indicate that his spending on food and wine rocketed while Parliament was sitting. Between 1 January and 31 Mar. he disbursed just over £474, whereas between 1 Apr. and 30 June he spent £669, an increase of more than 41 per cent.126 HEHL, EL148, 150.

The windfall provided by the fees arising from private bills could not have come at a more welcome moment. During the first half of 1604, Ellesmere’s finances were definitely pinched. In February the lord chancellor tried to sell one of his wife’s Northamptonshire manors to Alice’s son-in-law, the 5th Lord Chandos (Gray Brydges^*), who eventually paid him £300. Three months later, he raised more than £357 by selling off some silver plate.127 Northants. RO, E(B) 183-5; HEHL, EL151. This need for money was not surprising, as Ellesmere had recently purchased the manor and house of Ashridge, in Little Gaddesden, Hertfordshire. A former monastic building, Ashridge House required extensive renovation before it was habitable, work not completed until September 1607, when Ellesmere spent more than £975 in furnishing the property.128 HEHL, EL151, 190; VCH Herts. ii. 210. Ellesmere felt so overstretched that, sometime after May 1604, he complained to the king that his annual expenses as lord chancellor exceeded his income by a thousand marks. At around the same time he pointed out to Sir George Home, who had the king’s ear, that his predecessor, Lord Keeper Puckering, had been granted crown lands worth more than £298 p.a.129 HEHL, EL163a, 167. However, for the time being at least, the king ignored these heavy-handed hints.

The parliamentary session of 1605-6

In September 1604, two months after Parliament was prorogued, the king asked his Council whether he should enforce the recusancy laws. Ellesmere, who had recently supported a parliamentary bill in favour of such action, declared that the papists were dangerous, and that James would ‘do well to hold them in check and enforce the laws against them’. However, this view, which he repeated in Star Chamber five months later, was opposed by the Council’s two most influential members, Robert Cecil, recently created Viscount Cranborne, and Henry Howard, now earl of Northampton.130 A.J. Loomie, Toleration and Diplomacy, 56; Les Reportes del Cases in Camera Stellata ed. W.P. Baildon, 188.

Although Ellesmere distrusted Catholics, he was no friend to puritan reformers either, whom he regarded as equally inclined to sedition. When, in February 1605, the puritan gentry of Northamptonshire presented a petition to the king on behalf of those local ministers who had recently been deprived or suspended for nonconformity, Ellesmere accused its author, Sir Francis Hastings^*, of behaviour ‘tending to rebellion, by the combination of many hands against the law’.131 Letters of Sir Francis Hastings ed. C. Cross (Som. Rec. Soc. lxix), 90. See also Ellesmere’s annotations on an undated note warning of an imminent puritan petitioning campaign: HEHL, EL466. Shortly thereafter, in his charges to the judges delivered in Star Chamber, he warned against those who petitioned the king to alter religion, such as ‘papists and sectaries, or puritans’. The latter, he observed, were wont to complain that the Court of High Commission, of which he himself was a member, had no authority to punish offenders for nonconformity, whereas in fact the court derived its authority directly from the king’s absolute power, which predated both common law and statute law and was ‘annexed inseparably to his crown and diadem’.132 Les Reportes del Cases in Camera Stellata, 188.

Ellesmere attended the meeting of the House of Lords held on 7 Feb. 1605, at which Parliament was prorogued until the following October. In the following July he supported Cecil, now earl of Salisbury, after the latter urged the king to order a further postponement of Parliament, this time to early November. He nevertheless attended the prorogation meeting held on 3 October.133 LJ, ii. 349a, 351a; HMC Hatfield, xvii. 340, 345.

The main reason Parliament reconvened was the Union. During the 1604 session James’s plan to unite his two principal kingdoms had received a serious setback. He had therefore appointed commissioners from both kingdoms to create a written framework for the Union. Ellesmere himself was one of the leading English commissioners, and attended most of the meetings, which were held between late October and early December 1604. On 6 Dec. his colleagues on the commission instructed him to help present the completed document, known as the Instrument of the Union, to Parliament when it next met.134 Add. 26635, f. 23.

The Union necessarily remained uppermost in Ellesmere’s mind, even after the discovery of the Gunpowder Plot disrupted the reopening of Parliament on 5 Nov. 1605. Four days later, on 9 Nov., he formally presented the Instrument to the king and his fellow peers.135 T. Birch, Ct. and Times of Jas. I, i. 40; LJ, ii. 357b. At the same time he announced that the Union commissioners had ‘performed ... their best endeavours’ to ensure that

these two mighty kingdoms may be so united in profession of God’s true religion ... that as the Twins of our most loving father, your sacred Majesty, Pater Patriae, they might laugh and weep together, joy and sorrow together, and ever love and live together, until the king of all kings resume.

He dismissed the doubts about the Union, expressed in the previous session, as ‘but as a glimmering or morning star’. Of course, Ellesmere could not avoid mentioning the Gunpowder Plot, which he accurately described as being without precedent. However, he urged the king to remember that the plotters and their supporters were few in number, ‘whatsoever they pretend’. James, he declared, had ‘thousands, many thousands’ of true hearted, loyal subjects, who ‘hate and detest these monstrous vipers’ and who had pledged ‘their hearts to love you, their oath to aid you, their bodies to defend you, and their lives to die for you’.136 HEHL, EL473. For a contemporary summary of the speech, see ‘Jnl. of Sir Roger Wilbraham’ ed. H.S. Scott (Cam. Soc. ser. 3). 71-3.

Although Ellesmere had made the Union the focus of his opening speech, it soon became clear that Parliament was too preoccupied with the Catholic threat to devote much time to it. Indeed, when the Lords reassembled in the New Year, the lord chancellor soon found himself named to a committee to determine what new laws were needed to preserve the Protestant religion. He was subsequently required to consider bills for the attainder of the Gunpowder plotters, the repression of recusants and the education of recusant children as Protestants. Ellesmere reported all three of these last mentioned bills himself. In the case of the attainder bill, he announced on 25 Mar. that the measure concerned was so defective that the committee had drafted another in its place.137 LJ, ii. 360b, 367a, 399a, 401a, 419b, 440a. At a conference between representatives from both Houses on the two recusancy bills, held on 13 May, Ellesmere observed that one of the measures was too draconian, as it sought to deny any non-communicant the right to take legal action. As he remarked, this meant that a recusant whose husband or father was killed in an assault would be without legal remedy.138 Bowyer Diary, 163.

The threat posed by militant Catholicism was not the only issue which occupied the attention of Parliament during the second session. Purveyance was a serious source of grievance in the lower House, and led one Member, John Hare^‡, to introduce a bill aimed at forcing the king to pay the market price for goods taken up by his officers. Ellesmere seems to have shared the dismay of Salisbury at the widespread support in the Commons for this bill. At a conference between the representatives of both Houses on 14 Feb., Hare recited ‘with sorrow and grief’ a list of the abuses perpetrated by purveyors, for which he was swiftly criticized by Salisbury, who accused him of acting like a tribune of the people. He was also attacked by Ellesmere, who said he was sorry that Hare ‘should begin with sorrow and end with misery’, and that a far more pressing problem than purveyance was the size of the king’s debts, which now stood at £734,000. He invited the lord treasurer, Robert Sackville^*, 1st earl of Dorset, ‘an officer that better doth know the same than myself’, to explain the situation in detail.139 Ibid. 41-2.

On 26 Mar. Ellesmere expressed the king’s concern at poor attendance of the upper House. He proposed that in future any absent peer who failed to appoint a proxy should be fined, a motion which found favour with his fellow peers.140 LJ, ii. 401b. Ellesmere himself held the proxies of two peers during this session, Henry Clinton alias Fiennes^*, 2nd earl of Lincoln and Robert Spencer^*, 1st Lord Spencer. Lincoln was a close friend, to whose house at Chelsea Ellesmere planned in August 1607 to pack off his grandchildren and their mother to escape the plague,141 HEHL, EL177. while Spencer was the nephew of Ellesmere’s wife.

Ellesmere fell ill at the end of March 1606 and was therefore temporarily unable to perform his duties as Speaker of the upper House. His place was taken during the first week of April by the Lords’ senior legal assistant, Lord Chief Justice Popham. On resuming his place on 7 Apr., he was added to the committee for the bill concerning the government of Wales, which had been established in his absence. His inclusion was probably due to the fact that he had formerly been a member of the council in the Marches. The following day he was appointed to the committee for the bill to prevent the erection of weirs on navigable rivers.142 LJ, ii. 404a, 406a, 409a, 410a.

On 10 Apr. Ellesmere reported the bill to allow free trade with Spain and France, even though he was not named to the bill committee, established on 25 March. His reporting of this measure puzzled the clerk of the parliaments, who, not finding Ellesmere’s name in the committee list, was unable to complete his entry in the House’s Journal. Why Ellesmere took it upon himself to report this bill when he had not been named to the committee is unclear. However, it is probably significant that the measure concerned sought to undermine the recently revived Spanish Company, which enjoyed the support of the earl of Salisbury. In his report, Ellesmere declared the bill to be so general in its scope that it was not fit to proceed unless it was first discussed with the Commons.143 Ibid. 399b, 412a. This looks suspiciously like an attempt to torpedo the bill, or at least to persuade the Commons to abandon it. However, if Ellesmere was trying to scupper the bill, his tactic failed, as the measure subsequently passed into law.

On 12 Apr. Ellesmere was named to the committee for the bill to create a royal entail. This measure was a government bill, designed to save the king from himself, and so was presumably supported by Ellesmere. However, it subsequently foundered in committee because it threatened the interests of too many peers who owned lands formerly belonging to the crown.144 Ibid. 413a. On the background to the bill, see ROBERT CECIL. For opposition to the bill among the peerage, see GILBERT TALBOT. The following month, the king was presented by the Commons with a petition of grievances. James complained that this document was so long that he could give it no immediate answer. This grudging response understandably elicited discontent, as the Commons had just voted the king an extraordinarily large supply.145 Bowyer Diary, 166; CSP Ven. 1603-7, p. 353. Ellesmere, who played no direct part in these proceedings, subsequently tried to undo the damage caused by the king’s graceless behaviour. In July, after Parliament had risen for the summer, he told the judges, then about to go on circuit, that James had taken to heart the Commons’ grievances, had commanded his Council and legal advisers to consider them, and would have his prerogative ‘used tenderly, and to the greatest ease of the people that might be’.146 Les Reportes del Cases in Camera Stellata, 300.

The 1606-7 session

Following the prorogation of July 1606, Ellesmere renewed his complaint that he had been poorly rewarded for his services. He compared himself to others who had been ‘plentifully watered with the gracious streams of the royal fountain of your bounty’.147 HEHL, EL162. This time his griping produced a result, for in early November he was granted crown lands worth 200 marks a year, ostensibly as compensation for his loss of the mastership of the Rolls.148 HALS, AH 930-933; SO3/3, unfol. (6 Nov. 1606). However, he remained dissatisfied, for in January 1607 he appealed to Salisbury after renewing his petition to the king. James, doubtless tired of the lord chancellor’s complaints, thereupon granted Ellesmere a miscellaneous assortment of lands in Bedfordshire, Warwickshire, Buckinghamshire and Hertfordshire.149 Egerton Pprs. 408-9; HALS, AH945.

Parliament reconvened on 18 Nov. 1606, on which date Ellesmere addressed both Houses in the king’s presence. After noting that the subsidies voted in the previous session had been collected only slowly, he caused the clerk of the parliaments to read aloud the king’s answers to the grievances listed in the Commons’ recent petition. He also announced that the chief business of the session was to be the Union, which subject had necessarily been postponed in the previous session on account of the Gunpowder Plot.150 Bowyer Diary, 185.

Over the course of the following month, Ellesmere played a leading role in the Lords’ attempts to persuade the Commons to help bring about the Union. This task was more than a little frustrating. On 25 Nov., at a conference with the Commons, he expressed irritation that the representatives of the lower House had been given no authority to speak, observing that ‘silence in consultations effecteth nothing’.151 Ibid. 191. The following month, the Commons produced a petition from the merchants claiming that community of trade with the Scots would ‘breed confusion’, whereupon they were ‘roundly shaken up by my lord chancellor’.152 Carleton to Chamberlain ed. M. Lee, 94. Ellesmere’s efforts ultimately proved unavailing, but it was Salisbury, rather than the lord chancellor, who became the object of the king’s displeasure.

Ellesmere was appointed to ten bill committees after Parliament reconvened in February 1607. These included the bill to prevent Canons not approved by Parliament from being enforced, a measure opposed by the bishops, and also the bill to abolish the hostile laws between England and Scotland, the only aspect of the Union that the Commons were able to stomach. Ellesmere evidently chaired the latter committee, since it was he who reported its recommendations. He certainly played a leading role in conferences with the Commons on the subject. On 10 June, for instance, he opened proceedings with ‘a civil and kind commendation’ of the Commons before asking the representatives of the lower House a series of pertinent legal questions.153 LJ, ii. 503a, 520a; Bowyer Diary, 323.

Ellesmere was twice named to consider the bill to confirm defective titles of land (on 16 Feb. and again, following its reintroduction, on 23 March). It seems unlikely that Ellesmere was an enthusiast for the measure, since concealed lands – or rather their discovery - were a valuable source of income to the crown. Ellesmere was also twice named to the committee for the bill to preserve timber (18 Feb. and 22 June). His remaining legislative appointments concerned bequests of land; an exchange of land between the archbishopric of Canterbury and the crown; the incorporation of Northleach grammar school in Gloucestershire; and the rent charge bequeathed by the late Thomas Hoord for the repair of the highways.154 LJ, ii. 470b, 471b, 473a, 494a, 503b, 518a, 519b, 528b.

Ellesmere’s name is conspicuous by its absence from the committee lists relating to two private bills. The first of these measures concerned the estate of the late 5th earl of Derby, the former husband of Ellesmere’s wife, and the father of Lady Frances Stanley, who, in 1603, had married Ellesmere’s son and heir John Egerton. The bill was clearly of close personal interest to Ellesmere. Indeed, a draft survives among his papers.155 Northants. RO, E(B) 53. However, it would have been inappropriate for the lord chancellor to serve as judge and jury in his own cause. Similar scruples may explain why the 5th Lord Chandos, who had married another of Derby’s daughters, was also not appointed to the committee, despite being present in the House at the time.156 LJ, ii. 479b, 480a. The second committee to which Ellesmere conspicuously did not belong concerned the bill to allow Salisbury to exchange his house at Theobalds for the royal manor of Hatfield. Ellesmere clearly considered the bill to be important, since a breviate, or summary, of its provisions survives (most unusually) among his papers.157 HEHL, EL1220. However, he may have felt that the committee was composed of enough well disposed members, and that his inclusion was therefore unnecessary.

Calvin’s Case, 1608

The parliamentary session of 1606/7 had seen the king fail once again to persuade the Commons to endorse the Union. In particular, the Commons had rejected the assertion that those Scots born since his accession to the throne of England in 1603 – the so-called post nati – were natural-born subjects of both Scotland and England. According to Sir Edwin Sandys^‡, the most vocal opponent of the Union in the Commons, the Scots were ‘better than aliens but not equal with natural subjects’. When a majority of the common law judges declared in February 1607 that the contrary was true, Sandys retorted that the opinion of the judges carried less weight ‘when they are but assistants to the Lords in Parliament’. He also drew attention to the fact that one of the judges, Sir Thomas Walmesley^‡, agreed with the Commons.158 CJ, i. 345b; Bowyer Diary, 218.

Despite this parliamentary defeat, James was reluctant to let the matter rest. Over the winter of 1607/8 he organized a meeting of the leading lawyers from both kingdoms to discuss merging the two legal systems of both kingdoms in the hope of overcoming one of the chief obstacles to the Union identified by the Commons, the existence of separate laws. It seems highly likely that Ellesmere played a major role in these discussions, but since no account of the conference is known to survive it is impossible to be sure.159 B. Galloway, Union of Eng. and Scotland, 1603-8, pp. 145-6. However, Ellesmere certainly played a major role the following spring, when the issue of naturalization formed the subject of a test case.

Robert Calvin (recte Colville), born in Scotland after 1603, was denied the right to inherit some property in London on the grounds that he was an alien. His case was first heard in both King’s Bench and Chancery, before being adjourned to the Exchequer Court ‘for difficulty in law’. Ellesmere, though not an Exchequer baron, took part in the proceedings, and on 7 June 1608 declared his view in a court room attended by his Council colleague, Salisbury. Ellesmere was unequivocal. ‘Mine opinion is, and since the question was first moved hath been, that these post-nati are not aliens to the king, nor to his kingdom of England, but by their birth-right are liege subjects to the king, and capable of estates of inheritance and freehold of lands in England’. He reminded his listeners that the 1604 Act, which had authorized negotiations between specially appointed commissioners from both kingdoms, had declared that the two realms were united in owing allegiance to the same sovereign and his heirs, ‘and therefore I see not how we may out of imaginary conceits, and by subtle distinctions, strain our wits to frame several allegiances to one and the same royal person’. He also observed, entirely accurately, that during the reign of Edward III those of the king’s subjects who were born in the duchies of Normandy and Aquitaine were not treated as aliens, but as ‘liege and natural-born subjects to the king, and so capable and inheritable in England’. Were the post-nati to be treated as aliens ‘then are they in no better case in England than the king of Spain’s subjects born in Spain’.160 State Trials ed. T.B. Howell, ii. 662, 681, 696.

During the course of delivering his judgement, Ellesmere addressed a key argument put forward by Sir Edwin Sandys in the previous session of Parliament. Sandys had maintained that no weight should be given to the judges’ ruling of February 1607 on the grounds that, in Parliament, unlike the law courts, the judges were not tied by oath to give an honest verdict. Ellesmere proceeded to demolish this spurious contention with his customary skill. First, he pointed out that the oath sworn by the judges on taking office ‘doth bind them as much in the court of Parliament as in their proper courts; for that is the supreme court of all’. Moreover, in Parliament the judges were called by the king’s writ not to serve as listeners but ‘to counsel the king truly in his business’. In times past, writs of error had been brought before Parliament to challenge judgements in King’s Bench. In such cases the judges had been required to advise the Lords on matters of law and so ‘direct them in their judgement’. This was not a duty they could discharge if, as Sandys had averred, their legal opinion, expressed in Parliament, carried no weight. Finally, Ellesmere pointed out that, if Sandys was correct, the judges had no authority to sit as justices of assize or commissioners of oyer and terminer, or gaol delivery.161 Ibid. 665, 667.

Ellesmere’s views were shared by most of his fellow judges in the case, much to the delight of the Scots, who now looked upon the lord chancellor as their friend. James, too, was overjoyed at the outcome, which not only gave him the judgement he wanted but also put the hated Sir Edwin Sandys firmly in his place. He subsequently instructed the lord chancellor to set down in writing the text of his speech with a view to publication. Ellesmere, who had never published anything before, and would not do so again, was initially reluctant to oblige. However, James was adamant, not least because several imperfect reports of the lord chancellor’s speech were by then in circulation.162 Ibid. 660; Miscellany of the Abbotsford Club, i. 219-20. As a result, Ellesmere’s speech, set down ‘as near as I could in the same words I delivered it, without enlarging or diminishing’, was printed in February 1609. In the accompanying preface, Ellesmere explained that he had agreed to publish because the other judges in the case had omitted to mention matters ‘both pertinent ... and necessary to be known’, and because the case concerned was one ‘of great import and consequence, as being a special and principal part of the blessed and happy Union of Great Britain’.163 CSP Ven. 1607-10, p.234; ST, ii. 659.

The parliamentary sessions of 1610

In the summer of 1609, Ellesmere remained in London while the king went on progress.164 Birch, Ct. and Times of Jas. I, i. 100. Aside from a brief visit to Ashridge in mid October, he continued to conduct his official duties from York House, even after the king decided that an outbreak of plague made it unsafe to return to the capital.165 HMC Hatfield, xxi. 129-30, 135, 138; CSP Dom. 1603-10, p. 549.

Ellesmere’s decision to remain at York House over the summer of 1609 suggests that the lord chancellor believed that his life was not in imminent danger. (Twelve months earlier, he had fled to Ashridge to avoid infection).166 CSP Dom. 1603-10, p. 456.A similar conclusion, in respect of his own life, was reached by Salisbury, who returned to the capital once the royal progress had ended. In Salisbury’s case, however, the journey to London was a pointed if silent rebuke to the king. James had repeatedly postponed Parliament for one reason and another since 1607, and on 26 Sept. he did so again, this time on account of the plague. Salisbury suspected that James was using the plague as an excuse to avoid a further meeting with his subjects (the last three having proved so disagreeable). As lord treasurer he considered it imperative that Parliament should meet again soon, since he saw no other way to remedy the royal finances, which were in a parlous condition.167 ROBERT CECIL. In October 1609 he therefore persuaded Ellesmere to issue writs authorizing by-elections in those constituencies where vacancies had arisen since 1607.

Ellesmere attended the prorogation meeting held on 9 Nov. 1609, the fifth such gathering he had been obliged to sit through in two years.168 LJ, ii. 540a, 541a, 542a, 544a, 545a. He also attended Parliament when it opened on 9 February. The 2nd earl of Lincoln and the 1st Lord Spencer once again entrusted him with their proxies. Now aged 66, he was elderly by the standards of his age, and feared that sudden illness might prevent him from discharging his duties as Speaker of the Lords, as had happened, albeit briefly, four years earlier. For this reason, a commission was issued on 13 Feb. empowering the lord chief justice of King’s Bench, Sir Thomas Fleming^‡, to supply his place should the need arise.169 HEHL, EL1461; CSP Dom. 1603-10, p. 587; LJ, ii. 602b. This proved to be foresighted, for on the afternoon of 26 May, and again on 28 June, Ellesmere suddenly fell ill, whereupon this commission was invoked.170 LJ, ii. 602b, 629b.

Early in the proceedings, Ellesmere came under fire in the Commons for having imprisoned a poor man who refused to submit himself to the authority of the council in the Marches. This man was denied bail, and in due course died from disease contracted while in Newgate prison. Sir Herbert Croft^‡ used this episode to argue that the English border counties should be brought under the control of the common law courts. However, his criticism of Ellesmere was ‘tenderly apprehended’ by the recorder of London, Sir Henry Montagu^* (later 1st earl of Manchester), who retorted that it was lawful for a privy councillor to imprison any person. This defence of the crown’s power of arbitrary imprisonment proved so unpopular that Montagu had great difficulty in being heard above all the coughing.171 Procs. 1610 ed. E.R. Foster, ii. 353-4; HMC Downshire, ii. 240.

The main business of the session was financial. On 15 Feb. Salisbury asked the Commons to offer ‘some such supply as may make this state both safe and happy’. In return the king would ‘vouchsafe us those favours which are in his power to do’.172 Procs. 1610, ii. 14, 24. As a leading member of the Council, Ellesmere naturally supported Salisbury in the latter’s attempt to trade concessions for a permanent addition to the royal revenue, supplied by Parliament. For instance, on 26 June he seconded the lord treasurer, who urged the Commons to accept the bargain then on offer, arguing that those things the king was willing to surrender ‘are very great and of good worth’. Ellesmere also tried to ensure that the king’s interests took precedence over those of the subject. On 24 Feb., and again two days later, he expressed dismay after hearing the representatives of the Commons announce that, ‘without an exceeding[ly] noble retribution, we cannot satisfy’. It was the normal practice of parliaments, he insisted, for the king to accede to the wishes of his subjects only after his financial needs had been met.173 Ibid. 13, 119, 179. This was not a view widely held in the Commons, however, where it was observed that subsidies were customarily voted only at the end of a Parliament.

One of the roles performed by Ellesmere during the negotiations over what soon became known as the Great Contract was to act as a spokesman for the upper House. On 26 Feb. he was appointed to a 14-strong committee charged with informing the king that the Commons desired leave to negotiate for the surrender of feudal tenures.174 LJ, ii. 556b. When this permission was finally granted, Ellesmere was instructed, at Salisbury’s behest, to convey to James the thanks of the upper House, for ‘as the lower House giveth thanks by their Speaker, so I think it best we should do so by ours, being my lord chancellor, who is as good and able a speaker as most I have heard’. As Salisbury expected, Ellesmere discharged this duty (on 20 Mar.) with his customary eloquence, describing the matter then in hand as ‘the greatest that was ever spoken of or treated of’.175 Procs. 1610, i. 38-9, 42-3. For similar praise of Ellesmere’s abilities as a speaker by Salisbury, see ibid. 195.

It was not only as a spokesman that Ellesmere proved useful during the Contract negotiations. As the only lawyer-member of the upper House, Ellesmere found that his legal knowledge was needed when the discussion turned to the nature of the feudal duties that the Commons were offering to buy out. At first Ellesmere tried to remain aloof, as it was the job of the legal assistants, particularly the judges, rather than him, to advise the House on matters of law, but he soon found it necessary to wade in to explain basic points of law. At one point, he expressed frustration with his fellow peers, who seemed to want absolute certainty before forming an opinion:

If your lordships look to prevent and not proceed in this business till you have satisfied every doubt, you shall never come to an end; for it hath been held by the greatest and learnedest of judges that have been in this kingdom that a man shall never make a law that there cannot be objections made against it.176 Ibid. 56-60.

This was not the only occasion on which Ellesmere expressed exasperation during the session. At a conference on 4 May, he seconded Salisbury after the lord treasurer berated the Commons for sending their representatives to a meeting with authority only to listen rather than debate. ‘If you go with us this way’, the lord chancellor observed, ‘we shall never come unto an end’.177 Ibid. 81.

One of the chief obstacles to reaching an agreement with the Commons was impositions. These customs duties, levied without parliamentary consent and condemned by the Commons as a grievance in 1606, were an essential element of the royal finances and could not be surrendered. On 24 Apr. the Commons began to debate their legality, despite a ruling two years earlier which had upheld these levies (Bate’s Case). Ellesmere had little sympathy with the widespread hostility to impositions in the lower House. In a memorandum penned shortly after Parliament was dissolved, he condemned a bill on the subject drafted by the Commons as ‘strange both in form and matter’.178 Ibid. 281. Ellesmere was evidently not clear whether it was the 1606 or 1610 bill to which he was referring. He also objected to the Commons’ presumption in debating matters of law. The correct way to proceed, as he told the Lords on 26 Apr., was for a complainant to file a writ of error in King’s Bench. That way, the issue could be judged by the House of Lords, to whom judicial matters properly belonged, rather than the Commons. Alternatively, anyone who felt aggrieved could cause a writ of error to be issued by the Exchequer. This approach would eventually cause the judges to give their verdict before the lord treasurer.179 Ibid. 68-9. Either course of action would probably have confirmed the crown’s power to impose, but Ellesmere, naturally enough, did not care to point this out.

It was not only during the Contract negotiations and discussion of impositions that his credentials as a lawyer made Ellesmere useful to his colleagues. The lord chancellor found that his services were also in demand when the House turned its attention to the legal dictionary known as The Interpreter. Published by Dr John Cowell, regius professor of law at Cambridge, this book aroused the ire of the Commons for its statement that all law emanated from the king, who was thus not subject to its provisions. On 2 Mar. the archbishop of Canterbury, Richard Bancroft^*, proposed that Ellesmere should relay to the House the Commons’ exceptions to this book insofar as they concerned the common law, on which subject Ellesmere was better qualified to speak than his colleagues. However, Ellesmere asked to be spared on account of his age, his duties as lord chancellor and ‘his place as baron, in which the Lords often use him as a committee, which was none of predecessors barons had been put’. These excuses were initially brushed aside by the 3rd Lord St. John (Oliver St. John^*), who perhaps mistook them for false modesty. However, the matter was pressed no further after Ellesmere angrily replied that on other occasions peers had been excused merely for having a cold, ‘and his cold was such as he looked for his grave’. Instead, the report was delivered the following day by the earl of Northampton.180 Ibid. 184; LJ, ii. 560a. Ellesmere could not entirely escape from speaking about Cowell’s book, however, for on 5 Mar. he delivered to the House a summary of the state of affairs, a speech praised by the clerk of the Parliaments, Robert Bowyer^‡, as ‘apt, grave and effectual’.181 Procs. 1610, i. 186.

Ellesmere’s complaint that, in addition to all his other duties, he was expected to serve on committees seems to have been taken to heart by his fellow peers, as there was a decided lightening of his load during this session. Although he served on several conference committees, Ellesmere was appointed to only two bill committees before the July prorogation. The first of these measures sought to settle upon the 6th earl of Derby and his son, James Stanley^*, Lord Strange (later 7th earl of Derby), title to the Isle of Man, thereby securing them from any potential claims made by the daughters of the late 5th earl of Derby and their husbands, one of whom was, of course, Ellesmere himself. Ellesmere’s attitude to this bill, which was enacted at the end of the session, is unclear, but it was probably favourable, for when Bancroft queried why the bill gave Derby the right to collect tithes, Ellesmere provided a satisfactory explanation rather than lend support to the archbishop’s criticism.182 LJ, ii. 601a; Procs. 1610, i. 106. For the text of the Act, see An Abstract of the Laws, Customs and Ordinances of the Isle of Man ed. J. Gell (Manx Soc. xii), i. 61. The second bill committee to which Ellesmere was named originated in the Commons, and aimed to prevent Canons passed by Convocation from being enforced without parliamentary approval.183 LJ, ii. 611a. It seems likely that Ellesmere disliked this measure, which had previously considered in 1607, for when a bill against blasphemy was read on 7 July it was opposed by the lord chancellor on the grounds that it sought to take away a power ‘which properly belongeth to the Church’.184 Procs. 1610, i. 129.

The only other committee to which Ellesmere was appointed during the session was established by the committee of the whole House on 3 May. Its purpose was to consider what should be done about clerical non-residence and pluralism, and how to ensure that ministers were better educated. During the preceding debate, Ellesmere expressed his support for the general aims of the bill. Because many livings were insufficient, he asserted, many priests ended up entering foreign seminaries. He therefore supported a proposal, put forward by Salisbury, that peers should give £10 for every impropriate cure they owned. However, Ellesmere defended the learning of the clergy, declaring that we in England have a more learned ministry than any country in Christendom’. He was also critical of key aspects of the bill, particularly the clause which sought to deprive the king of the right to present to livings within his gift. Indeed, ‘as the bill is, I shall never consent to it’.185 LJ, ii. 587a; Procs. 1610, i. 77, 232.

Although named to only one bill committee during the session, Ellesmere was not uninterested in legislation. On 23 Mar. he drew the House’s attention to a flaw in the bill to allow property owners to regain possession of their property by force under certain circumstances. He also observed that a similar measure had been cast aside in the previous session, whereupon the House, taking the hint, threw the bill out. On 3 Mar. Ellesmere persuaded the House to order the judges to review existing legislation on the state of the highways. The poor condition of many roads was a matter of considerable concern to the judges, particularly those who travelled their circuits each year. As a result of Ellesmere’s intervention, a bill to mend the highways, and punish those who refused to maintain them, received a first reading in the Commons 12 days later.186 LJ, ii. 561a; Procs. 1610, i. 26; ii. 57. Unfortunately for the lord chancellor, this failed to progress, as did a second measure on the same subject, which was read by the lower House on 28 March.187 CJ, i. 415a; ‘Paulet 1610’, f. 5. Ellesmere had rather more luck in respect of the bill to restore in blood the Essex rebel and recusant Sir John Davies. At the bill’s third reading on 2 Apr., Richard Parry^*, bishop of St Asaph, declared it to be ‘not fit to restore him to his own blood that refuseth to receive the Lord’s blood’. Ellesmere, however, was willing to take a more charitable view, as Davies had not only taken the oath of allegiance but also stayed with him during private prayer, ‘without my moving him or desiring his company’. Now that Davies had come to church, it hardly seemed wise ‘to drive a man backward’. This view was shared by many of Ellesmere’s fellow peers, and, as a result, the bill was passed after being put to the question.188 Procs. 1610, i. 61, 205-6.

Over the course of the summer recess, Ellesmere turned his thoughts towards death. His marriage to the dowager countess of Derby had proved to be very far from happy. Indeed, he considered the years spent wedded to Alice ‘a punishment inflicted on me by almighty God’. He was concerned that, on his decease, his widow would seek to secure for herself possession of a large part of his estate, at the expense of his son John, despite the fact that, at his marriage, he had assigned to Alice a far greater jointure than his estate could easily bear. He therefore penned a memorandum, in which he asked Alice to content herself with the provision he had already made. However, fearing the worst, he also drew up some notes of advice for his son (who was no lawyer) in case his stepmother proved to be difficult.189 HEHL, EL214; Wilkie, 220-2.

When Parliament reconvened in October, Ellesmere was confronted with a thinly attended upper House. Like a large section of the Commons, many peers preferred to stay away rather than discuss the Great Contract any further. Consequently, on the 23rd, eight days after the session commenced, Ellesmere ordered that warning to attend be given to all absentees who were then in town.190 LJ, ii. 670b. However, neither his efforts nor those of Salisbury proved able to save the Contract, which collapsed two weeks later.

Following the failure of the Contract negotiations, Ellesmere suggested that the Lords ask the Commons to vote supply, a motion seconded by Salisbury. This was surprising, as proposals to grant subsidies normally originated in the lower House. It was also at variance with Ellesmere’s own conservative nature as, generally speaking, the lord chancellor disliked novelty.191 De Maisse Jnl. 21; Misc. Abbotsford Club, i. 219. Indeed, only recently, in late June, he had spoken disapprovingly of the fact that the Commons now permitted Members of their own House to draft bills, a practice that had not been permitted when he had sat among them.192 Procs. 1610, i. 243.

As well as calling upon his fellow peers to press the Commons for supply, Ellesmere suggested offering the lower House a scaled-down version of the Great Contract, along with a promise that no more impositions would be introduced with the consent of Parliament. This motion, too, was seconded by Salisbury, with whom the idea undoubtedly originated. The House agreed, and duly appointed Ellesmere, along with the earls of Salisbury and Northampton, to act as spokesmen at the conference with the Commons’ representatives later that same day.193 Ibid. 253-4. At this meeting, Ellesmere announced, on his own account, that if the ‘mini-Contract’ failed to proceed it would be a ‘discredit’ to them all. By leaving the king in want, they would make him less regarded, both by his own subjects and by foreign princes, who would be ‘ready to invade us, hearing of the king’s inability either to defend or offend’.194 HMC Hastings, iv. 225-6. However, the Commons rejected the mini-Contract the following day.

During the final stages of the Parliament, the 2nd earl of Lincoln once again assigned Ellesmere his proxy.195 LJ, ii. 666b. Two days later, Ellesmere halted the reading of a bill to enable the king’s eldest son, Prince Henry, to make leases after Gilbert Talbot^*, 7th earl of Shrewsbury, was seen to whisper in his ear. On the final day of the session, Ellesmere urged Members of the Commons to return home so as to give hospitality to the poor over Christmas. He also pressed them to arbitrate in local disputes in order to prevent the Westminster courts, which were clogged up with cases, from becoming further inundated with lawsuits.196 Procs. 1610, i. 254-5; HMC Hastings, iv. 228-9.

Following the Christmas holiday, on 9 Feb. 1611, Ellesmere attended the meeting of the Lords at which the Parliament was formally dissolved. The following October, he wrote to the nephew of the now deceased Archbishop Bancroft seeking the return of various bills that had been entrusted to the archbishop’s charge while Parliament sat but which had not been returned to the clerk of the parliaments as was customary.197 E.R. Foster, House of Lords, 262.

Ellesmere’s ‘special observations’ on the first Jacobean Parliament

Ellesmere was profoundly shocked by his experience of James’s first Parliament. In the immediate aftermath of this tumultuous assembly, which had seen the Commons not only claim the right to judge of disputed elections but also reject both the Union and the Great Contract, he penned a lengthy memorandum for the king, who shared his sense of outrage. Entitled ‘Special observations touching all the sessions of the last Parliament’, it argued that, ever since 1604, the House of Commons – the ‘popular state’ - had grown ‘big and audacious, and in every session of Parliament swelled more and more’. Were the Commons to continue ‘to usurp and encroach ... upon the regality’ unchecked, he warned, they would not cease ‘until it break out into democracy’.198 Procs. 1610, i. 276-83 (for this and the ensuing paragraphs).

To demonstrate his case, Ellesmere provided James with numerous examples to show that the Commons had systematically exceeded their authority. For instance, he claimed that the lower House had taken upon itself to extend parliamentary privilege, which was meant only to protect the person from arrest, in order to allow Members to ignore writs summoning them to answer legal actions or provide testimony in lawsuits. This, said Ellesmere, was without warrant in law and contrary to reason and precedent. It also had the effect of causing justice to be delayed. Ellesmere also complained that the Commons had permitted outlaws to sit among them, and ‘presumed to allow and disallow’ of election returns ‘at their pleasure’.

The Commons’ tendency to exceed their authority was not all that worried Ellesmere; he was also alarmed at their growing impertinence. Some Members had demanded the right to sit covered at conferences with the Lords rather than stand bareheaded, as custom and social deference demanded. Others, ‘desirous to be remarkable and valued and esteemed above others for their zeal, wisdom, learning, judgment and experience’ had ‘presumed to use in the lower House publicly very audacious and contemptuous speeches against the king’s regal prerogative and power ... And this hath passed with applause of many others there’. Ellesmere cited as a prime example the speech delivered at a conference in February 1606 by John Hare, who had told the Lords, on behalf of the Commons, that he came ‘to deliver grief and sorrow’, before complaining ‘that the times past were golden days’, that they had been promised reformation, ‘but all was worse and worse’, that ‘Pharoah’s frogs were come amongst us’ and that ‘it was only the profession of the Gospel which contained and stayed the people’. Another objectionable Commons spokesman alluded to by Ellesmere was Sandys, who had described the Union ‘as voluntary, and not necessary, that it would be our own wrack and ruin’, and that ‘the blissfulness of the receiver would be the bane of the giver’.

It was not merely the actions of individual spokesmen that Ellesmere regarded as reprehensible. During the fifth and final session of the Parliament, when Salisbury pressed the Commons to bring the Great Contract to fruition, he observed that many Members had ‘affirmed openly that it was never meant the Contract should proceed and take effect and that there was no hope to have any security for the same because they saw that their grievances were not answered’. No less incredible had been the protests made in November 1610, after it was learned that James had summoned before him several leading Members of the Commons to discuss the Great Contract in private. Those Members excluded from this meeting claimed that those who had attended had committed ‘an offence that deserved the Tower’.

Ellesmere saw in the audacity of the Commons a growing desire to be freed from royal control. He pointed to the fact that in 1607 some Members had asserted the right to choose another Speaker if they wished. He also noted that others had been heard to say among themselves that the Parliament was so well affected and composed that it should continue to meet every five years, without the need for a royal summons, a proposal which, if implemented, would deprive the king of an important aspect of his prerogative. Ellesmere further pointed out that some Members, not content to debate matters in public, had chosen to ‘single them[selves] from the others, and kept secret and privy conventicles and conferences, wherein they devised and set down special plots for the carrying of business in the House according to their own humour and drifts’. He claimed that on one occasion six Members, ‘who had great countenance and did bear great sway in the House’, plotted to oppose the grant of a subsidy. After they had spoken, he said, these six ringleaders planned that other Members should remain silent until the bill was put to the question, at which point they would overthrow it with a general ‘no’. These private meetings threatened to undermine control of the Commons’ agenda, which had hitherto been exercised by the Speaker and those privy councillors with seats in the lower House.

Ellesmere raised the spectre of a House of Commons that was out of control, that sought to set its own agenda and manage its own affairs without reference to the king or Council. Worse still, he suggested that it wished to impose limits on royal authority. He pointed out that the lower House had expressed alarm at the king’s frequent issue of proclamations (which many saw as a threat to Parliament’s monopoly over legislative matters) and had challenged James’s right to levy impositions. He also drew attention to the fact that the Commons had called into question the authority of the prerogative courts, such as High Commission, the council in the Marches and Star Chamber, and had questioned the authority of all courts of equity, such as Chancery, of which Ellesmere himself was the head, ‘which they termed courts of arbitrary discretion’.

To Ellesmere, one of the most pernicious developments in the late Parliament was that the Commons ‘did challenge and usurp a judicial power and form of proceeding in divers cases’. Only the Lords had judicial authority, and yet the Commons had presumed to examine a judgement given at common law and then ‘passed a bill declaring the law to be contrary to the former judgement. And this they did without having the advice or hearing of any of the judges of the law’.199 The reference appears to be to a bill to enable George Ognell to establish his title to a Warwickshire manor. See HP Commons 1604-29, i. 32-3. They had also taken it upon themselves, in 1610, to examine a sentence given in the admiralty court in case of one Pontis, and then passed a bill enabling the latter to appeal against his sentence, ‘whereas the appeal was formerly denied’. Moreover, they had granted injunctions to stay suits in Chancery, examined decrees made by that court, and called before them Sir Stephen Proctor and Henry Spiller for examination, even though neither man was a Member of the lower House, ‘a case of rare example, and if it be drawn to a precedent may have a dangerous consequence’.

The effect of Ellesmere’s ‘special observations’ on the king is difficult to gauge. James shared his lord chancellor’s sense of outrage at the Commons’ behaviour, and so needed little encouragement from Ellesmere to feel aggrieved. On the other hand, Ellesmere’s detailed analysis can only have served to reinforce the king’s growing belief in the existence of a popular conspiracy to undermine the monarchy, and bolstered James’s determination to avoid summoning another Parliament.200 R. Cust, ‘Chas. I and Popularity’, Pols., Religion and Popularity ed. T. Cogswell, R. Cust and P. Lake, 242; A. Thrush, ‘Personal Rule of Jas. I, 1611-20’, idem, 85-6. When Salisbury fell terminally ill in February 1612, it was Ellesmere who was briefly tipped to succeed him at the Exchequer.201 Winwood’s Memorials ed. E. Sawyer, iii. 338.

The 1614 Parliament

In fact, Ellesmere was little interested in becoming lord treasurer. Following the death of his own daughter, Mary, in April 1612, his thoughts turned once again to his own mortality for, now that he had reached the age of 70, death could not be long in coming.202 Memorials of St Margaret’s, Westminster ed. A.M. Burke, 497; HEHL, EL707. In August, while others were jockeying to succeed Salisbury, Ellesmere drafted a petition to James asking to be allowed to surrender the lord chancellorship on grounds of infirmity.203 HEHL, EL236. In the event, however, he decided against presenting it.

Later that same year, Ellesmere held a conference at York House with the judges of King’s Bench and the Exchequer in order to establish whether the Court of Common Pleas was entitled to issue writs of prohibition. Under the leadership of Sir Edward Coke^‡, Common Pleas had greatly increased its business by issuing such writs, which caused cases to be transferred from one court to another. No doubt to Ellesmere’s dismay, the judges declared that Coke was acting within his rights.204 Coke, 12 Rep. 109, misdated Hilary term 2 Jas. I. The correct date can be inferred from the fact that Sir Christopher Yelverton, who died 31 Oct. 1612, is described as recently deceased.

Ellesmere was among those peers who, in October 1612, accompanied the body of James’s mother, Mary, queen of Scots, prior to its reburial in Westminster Abbey.205 Newsletters from the Archpresbyterate of George Birkhead ed. M.C. Questier (Cam. Soc. 5th ser. xii), 26. Two months later, he took part in the funeral of James’s eldest son, Prince Henry.206 Harl. 5176, f. 208v. Early in the following year, he again drafted a petition asking to be allowed to resign, but once again he chose not to present it.207 CSP Dom. 1611-18, p. 168. His continuation in office was essential to those who championed the Protestant cause at home and abroad. Along with George Abbot, archbishop of Canterbury, Ellesmere was regarded as the leader of the Protestant interest at court. When, in May 1613, the Elector Palatine, Frederick V, left England, the only councillors to whom he gave presents were Abbot and Ellesmere.208 Chamberlain Letters, i. 449.

Ellesmere’s enthusiastic support for the Protestant cause meant that by 1613 he no longer saw eye to eye with the king. By 1613 James was determined to marry his surviving son, Prince Charles (Stuart*, later prince of Wales), to a French Catholic princess. Such a marriage would not only signify that England was a leading European power but also result in the payment of a large dowry. This money would go some way towards paying off the king’s mounting debts and, in so doing, make it unnecessary to summon another Parliament. Although Ellesmere himself had little affection for Parliament, having written a detailed memorandum on the presumption of the House of Commons only two years earlier, he also had no desire to see Charles married to a Catholic. In November 1613, he and Abbot took advantage of the recent publication in the Spanish Netherlands of a book questioning the king’s authority to tell James that no trust could be placed in any Catholic prince, especially the king of Spain.209 Spain and the Jacobean Catholics II: 1613-24 ed. A.J. Loomie (Catholic Rec. Soc. lxviii), 15-16.

Opposition to a Catholic match inevitably brought Ellesmere into conflict with the earl of Northampton, whose support for a Spanish marriage for the prince, and desire for the lord treasurer’s staff, was as well known as the insincerity of his conversion to Protestantism. In February 1614 Northampton brought an action for libel in Star Chamber against Sir Stephen Proctor, who claimed that Northampton had concealed important information about the Gunpowder Plot. Ellesmere’s sympathies lay with Proctor, whose acquittal would necessarily undermine Northampton’s standing and damage his chances of becoming lord treasurer. Consequently, when the judges in the case failed to reach agreement, he used his casting vote, as chairman of the court, to free the defendant.210 Letters of John Donne ed. E. Gosse, ii. 34. See also Chamberlain Letters, i. 509.

It is unclear what part, if any, Ellesmere played in persuading James to summon Parliament as an alternative to a French marriage for the prince. However, there is no evidence that he was a party to the agreement struck in January 1614 between Thomas Howard^*, 1st earl of Suffolk (the leading hispanophile on the Council next to Northampton) and William Herbert^*, 3rd earl of Pembroke (one of the leaders of the Protestant interest at court), which helped to push James in the direction of another meeting with his subjects. Not long after the issue of writs of summons, Ellesmere, like Northampton, fell seriously ill. The king, who realized that political turmoil in France prevented him from making any further progress with a French marriage treaty, seized upon the illness of two of his principal councillors to justify suspending the marriage negotiations for the time being.211 CSP Ven. 1613-15, p. 100; HMC Downshire, iv. 343. On the political turmoil in France and its impact on the marriage negotiations, see A. Thrush, ‘French Marriage and the Origins of the 1614 Parl.’, Crisis of 1614 and the Addled Parl. ed. S. Clucas and R. Davies, 31-2.

Fearful that the House of Commons would once again prove impossible to control, and hearing it rumoured that many boroughs intended to reject his servants, James ordered his councillors to use their powers of patronage to return as many of their clients to the lower House as possible.212 Cott., Titus F.IV, f. 332r-v. Ellesmere, however, now had little electoral patronage at his disposal. He was no longer recorder of Lichfield, which office he had surrendered to his son in about 1606, nor was he high steward of the borough of Oxford, with the result that his former son-in-law Sir Francis Leigh was forced instead to look for a seat (at Leicester) to the chancellor of the duchy of Lancaster, Sir Thomas Parry^‡. However, as chancellor of the university of Oxford, to which position he had been elected in November 1610, Ellesmere helped prevent his friend Sir Daniel Dunne^‡, dean of the Arches, from being cast aside in favour of another candidate. He may also have been responsible for recommending to his Chancery colleague, the master of the Rolls Sir Edward Phelips^‡, his former secretary John Donne^‡, who came in for Taunton.213 HP Commons 1604-29, ii. 325; iv. 135; v. 91.

Unlike Northampton, Ellesmere recovered from his illness by the time Parliament assembled on 5 April. On the 7th he addressed the Commons, and announced that Parliament had been summoned to relieve the king. He urged his listeners not to be niggardly, as they had had enjoyed 11 years of peace and plenty. What, he asked rhetorically, would they not have given before James’s accession in return for the assurance of such good times to come? No doubt, he added, they would have given ‘a great part’ of their estates. Ellesmere then announced that the king was willing to grant the Commons their accustomed liberties and privileges. However, he could not resist including a sly dig at the Commons’ practice of refusing to unseat outlaws. James, he added, assures himself that ‘you will not entertain or protect any whereby the creditors shall be defrauded or enforced to wait ... for recovering of their due and just debts till after the Parliament’.214 HMC Hastings, iv. 236.

Thereafter, Ellesmere attended the upper House without interruption. Until the fourth week in May his time was largely taken up with the routine management of the Lords. That said, on 14 Apr. he attended the conference with the Commons over the bill to assure the rights to the succession of the children of the king’s daughter, Elizabeth, wife of the Elector Palatine, at which he acted as a spokesman for his fellow peers. Two days later, at the second reading of the bill to prevent lawsuits arising from disputes over land bequeathed in wills, he ventured to inform the House that he considered the measure to be necessary.215 Ibid. 242-3.

On Saturday 21 May the Commons requested a conference with the Lords on the subject of impositions. It was clear that the lower House intended to challenge the legality of these levies. It was also clear that the king could not afford to surrender them. On receiving this request, Ellesmere advised the Lords to debate the matter in grand committee, which would enable him to speak his mind freely (since he would no longer be discharging the duties of Speaker). The House agreed, whereupon Ellesmere recommended that the Lords consult the judges. This motion was immediately opposed by Henry Wriothesley^†, 3rd and 1st earl of Southampton, who enjoyed close links with the Commons. Southampton correctly perceived that Ellesmere was trying to ensure that the Lords were armed with a fresh legal opinion in favour of impositions ahead of any meeting with the Commons. Ellesmere’s proposal was not taken up, and by the time the debate ended a compromise had been reached. Instead of a full-blown conference, which would necessarily involve an exchange of views, the Lords would agree to meet the Commons and listen to what they had to say. However, no formal resolution was passed, and by the time the decision was reached the morning was far advanced. It was therefore agreed that a formal report should be deferred until the House reassembled on Monday.216 Ibid. 249-51.

When the House reconvened, Ellesmere reminded his colleagues that it had been decided that it would be inappropriate to confer with the Commons. However, he also announced that, although some peers had proposed a simple meeting instead, nothing had been formally agreed. This was technically correct, but it was not at all in the spirit of the decision reached the previous Saturday. As Henry Hastings^*, 5th earl of Huntingdon remarked in his diary, most peers ‘took it for granted’ that they had agreed to meet the Commons. It was clear that Ellesmere was doing everything in his power to prevent a meeting with the Commons from taking place. Whether this also suggests that he had come under heavy pressure from the king to do so is unclear.217 Ibid. 251. Russell asserted that heavy official pressure was exerted, but offered no evidence to support this claim: C. Russell, King Jas. VI and I and His English Parls. 119.

Doubtless as he had intended, Ellesmere had put the House back to square one. In the ensuing debate, the 3rd Lord Rich (Robert Rich^*) pressed his fellow peers to respond to the Commons one way or another, ‘because they will expect an answer this day’. However, Ellesmere refused to allow the House to be hurried, and reminded his colleagues that they were tied to no particular time, since they had merely agreed to furnish an answer in convenient time. He then (in his capacity as a member of the House rather than its Speaker) repeated his earlier motion, that the House should first consult the judges before meeting the Commons, and pointed out that they had done precisely this in 1604, when the matter in hand had been the naturalization of the Scots. His proposal caused the question to be put to a vote and, to Ellesmere’s satisfaction, those in favour of consulting the judges before meeting the Commons triumphed.218 W. Petyt, Jus Parliamentarium (1739), 342, 344; HMC Hastings, iv. 252, 255.

It must have seemed to Ellesmere that he had matters neatly sewn up. The judges would now meet and, after brief deliberation, they would declare in favour of the king’s right to impose. The Lords would then wave this declaration before a no doubt furious but impotent lower House. However, Ellesmere had reckoned without the lord chief justice of King’s Bench, Sir Edward Coke, whose poaching of business from other courts by means of writs of prohibition had irritated him a few years earlier. When the judges emerged half an hour later from their consultation, Coke, who had undoubtedly pressured his colleagues, announced that they would only give an opinion on the legality of impositions once they had heard the matter debated. This was not at all what Ellesmere had been expecting to hear. He now had little choice but to put the question: should the Lords meet the Commons? Thankfully for him, however, time was once again short, and therefore it was decided to defer the matter until the following morning.219 HMC Hastings, iv. 255-6; LJ, ii. 706a-b.

The next day, the 24th, Ellesmere played his final card. He told the House that, were they to meet the Commons, they would do so at a considerable disadvantage. The Commons were full of lawyers, who had studied the matter long and hard. They could ‘lay record against record, and book against book’. By contrast, the Lords consisted mainly of non-lawyers who ‘can say nothing, having not seen records’. The only lawyer-Member of the House was Ellesmere himself, and he had no intention of arguing the king’s case single-handed. If anyone else in the House thought himself capable of disputing with the Commons, they were welcome to try, but ‘for my part I must desire to be excused’. As in 1610, Ellesmere also observed that if the Commons felt themselves to be aggrieved, they should move a writ of error and allow the case to be heard before the House of Lords.220 HMC Hastings, iv. 263.

Ellesmere’s refusal to argue the legal case for the king paved the way for a motion by the lord chamberlain, the earl of Suffolk, who urged the House to decline the request for a conference, on the grounds that a refusal would make the Commons ‘surcease their suit’. In the ensuing vote, the king’s supporters prevailed. All that remained was to consider how to convey the House’s decision to the Commons. As it was now late, it was resolved to postpone this matter until the House next sat, in two days’ time.221 LJ, ii. 707b. For the near solid support of the bishops for the crown, see Chamberlain Letters, i. 533.

When the Lords reassembled on the 26th, Ellesmere evidently suggested that the Lords should ‘take the same course as in the matter of tenures’. That is to say, he advised them to answer that, ‘in regard of many weighty and great reasons for this time, we think it not fit’ to give the Commons a meeting on the subject of impositions.222 HMC Hastings, iv. 264. However, neither in 1604 nor in 1610, when ‘tenures’ (meaning wardship) had been debated, had the Lords refused to confer with the Commons. On the contrary, they had not declined a request to confer in living memory. Either Ellesmere was confused or, more likely, the diarist who recorded his words – the earl of Huntingdon – misreported his words. Since Huntingdon’s diary was written some time after the event, the latter seems likely. Perhaps what Ellesmere actually did was to draw attention to the Commons’ own refusal to confer with the Lords ten years earlier about the Buckinghamshire election dispute.223 For this episode see CJ, i. 156a-b. The Commons were eventually obliged to confer after receiving a direct order from the king.

The news that the Lords had voted not to confer acted as a signal for the Commons to launch an all-out assault on Richard Neile^*, bishop of Lincoln (later archbishop of York). During a recent debate in the Lords, Neile had announced that it would be dangerous to confer on impositions, ‘for in the oath of allegiance we are sworn to maintain the privileges of the crown, and in this conference we should not confer about a flower but strike at the root of the imperial crown’. In saying this, Neile came perilously close to accusing the Commons of sedition. Despite the tactlessness of these remarks, Ellesmere was among those peers who rallied to the bishop’s side on 28 May, when the Commons remonstrated to the upper House and demanded redress. He criticized the Commons for complaining on the basis of mere hearsay. The rumour that a man had spoken treason was not sufficient grounds to condemn him, he observed, especially as tales tended to grow in the telling. Unless the lower House could produce better evidence than mere ‘common fame’, ‘I cannot see how he can be touched or hath offended by the common law’. Even more telling was his observation that if the Commons were allowed to proceed against Neile on the basis of common fame, none of them would be safe from similar accusations in future, thereby putting an end to their right to free speech. ‘If your lordships do not look well unto your privileges’, he warned, ‘you will lose them’. They should be as careful in protecting their rights as the Commons were as jealous in preserving theirs. Ellesmere added that Neile could only be accused in law by those who had heard him speak. However, since the Lords were judges they could not also be his accusers, ‘and by law there must be a party accusing’. He also pointed out that if the Commons’ complaint was allowed to stand, both he himself and the rest of the upper House would necessarily be thought remiss, as ‘I should, under my lordships’ favour, have checked him for it’.224 HMC Hastings, iv. 270-1.

It was doubtless largely as a result of Ellesmere’s robust defence of him that Neile was required to do nothing more than provide the upper House with an explanation of his meaning. Following the bishop’s tearful speech, Ellesmere was appointed to the committee to draft a message to the Commons explaining that they had now heard the bishop and were satisfied that no further action was necessary. However, this episode, coming so soon after the rebuff delivered to the Commons over impositions, had seriously soured the mood in the lower House, whose members were far from willing to vote supply. On 6 June the king sought to bring matters to a head. He sent Ellesmere to the upper House with a commission to dissolve the assembly, but he evidently also gave the lord chancellor instructions to exercise his discretion. On addressing the House, Ellesmere declared that, if the Lords had reason to suppose that the Commons were now willing to vote subsidies he would gladly defer executing the commission, ‘for I should be very sorry to see the Parliament break up in this fashion and the king and people thus to part without either receiving satisfaction and the king’s necessities left unsupplied’. As a result, and at the motion of Southampton, perhaps the Commons’ keenest ally in the upper House, Ellesmere and his fellow dissolution commissioners retired to the lord chancellor’s chambers overlooking the Thames. There, for the next three hours or so, they waited to hear from the lower House, where a supply debate had belatedly begun. The following morning, however, it became clear that the Commons had no intention of voting supply unless their grievances were redressed. Consequently, that afternoon, Ellesmere announced the dissolution of ‘this intended but indeed no Parliament’, which had failed to enact a solitary piece of legislation.225 Ibid. 280-2, 288.

Enemies at court, 1614-16

In the aftermath of the dissolution rumours abounded that Parliament remained in being. After all, the bill to naturalize the Elector Palatine’s children had not only passed both Houses but had also been approved by the king. It fell to Ellesmere to scotch these reports publicly in Star Chamber, at the close of the law term, on 14 July.226 Chamberlain Letters, i. 546, 550.

Over the summer, Ellesmere turned his attention to the business of reforming Chancery, for in October he published a series of orders designed to curb the excessive length of Chancery bills.227 CSP Dom. 1623-5, p. 547. In January 1615 he fell gravely sick, the second bout of ill health in less than a year.228 Chamberlain Letters, i. 574-5. The Council responded by holdings its meetings at York House rather than Whitehall for the time being. They also suspended the prosecution in Star Chamber of Oliver St John, the Wiltshire gentleman who had refused to contribute to the Benevolence raised after the 1614 Parliament on the grounds that such levies were contrary to law. Ellesmere consented to this, but urged his colleagues not to postpone matters further in the event of his death.229 APC, 1615-16, pp. 37-8, 40; NLS, Adv. ms 33.1.77, vol. 22, no. 23. By 19 Feb. Ellesmere was well enough for the Council to resume meeting at Whitehall, but shortly thereafter he suffered a relapse. He was still unwell in mid March.230 APC, 1615-16, p. 52; Chamberlain Letters, i. 582; CSP Dom. 1611-18, p. 279.

In the summer of 1615 Ellesmere refused to seal a general pardon for the king’s favourite, Robert Carr^*, earl of Somerset. The latter, nervous at the rise of a rival in the form of the young Sir George Villiers^* (later 1st duke of Buckingham), had applied to James for remission of all offences short of murder and physical injury. Ellesmere had good reason to wish Somerset ill, as the favourite supported a Spanish Match for Prince Charles, whereas the lord chancellor was one of the leading lights of the Protestant interest at court. Matters came to a head in August, as the king was about to set out on progress. At the Council table Somerset, after explaining that the malice of his enemies had compelled him to seek this pardon, demanded that if Ellesmere knew of any offence he had committed he should say so. Before the lord chancellor could reply, however, James ordered the grant to be sealed without further ado. Ellesmere thereupon threw himself upon his knees and, after describing the intended pardon as being without ‘a single precedent’, asked James whether it was his intention to allow Somerset, the keeper of Whitehall Palace, to denude the royal residence of whatever he wished, for the pardon said that the earl should not account for anything. If it was, he requested an order in writing exonerating him from any blame. James was so incensed at this uncharacteristic display of defiance from his lord chancellor that he stormed out of the meeting, though not before repeating his earlier instruction. However, when the queen, who hated Somerset, heard what had transpired, she prevailed upon the king to think again. As a result, the pardon was never sealed.231 Archaeologia, xli. 166-8. For the pardon, see CSP Dom. 1611-18, p. 293.

While the king made merry with young Villiers, Ellesmere and the rest of the Council debated whether the crown’s financial situation was so desperate that a fresh Parliament was now inescapable. Ahead of these discussions, on 18 Sept. 1615, Ellesmere prepared a paper entitled ‘Things to be considered of before a Parliament to be called’. In this document, Ellesmere claimed that, in recent years, too much way had been given to importunate suitors ‘by those who had the charge and husbanding of the king’s treasure, and therefore should have withstood and stopped such suits’. This comment has been interpreted as a criticism of the Scots about the king, but it was actually directed against two former (and now deceased) lord treasurers, Dorset and Salisbury, both of whom were accused of having enriched themselves at the crown’s expense. Ellesmere therefore recommended that no further grants be allowed to pass that had the effect of reducing the crown’s income until the king’s debts were paid. Ellesmere also recommended that the Book of Rates, in which the crown set down the duties payable on imported goods, be revised. This would allow ‘many of the small and unprofitable (but yet offensive) impositions’ to be taken away. At the same time, imposts on luxury items – ‘things which serve for delicacies, pride, luxury and excess to corrupt the people’ - should be increased. In addition, Ellesmere advocated the creation of a balance of trade, as the country was being impoverished by the buying of foreign imports, and argued that the king’s annual income should be increased ‘by lawful, just and honourable means’. Finally, he demanded immediate action. Too much time had already been spent on debating what to do ‘without resolving or concluding anything certainly.’232 Knafla, 263-73.

Ellesmere’s discussion document was scarcely worth the paper and ink committed to it. In the first place, the need to increase the king’s income and create a balance of trade was perfectly obvious. These things required not platitudes but constructive suggestions, which were conspicuous by their absence. In the second place, Ellesmere was guilty of political amnesia. Were he to be believed, Dorset and Salisbury had failed to lift a finger between them to prevent the king from granting away both land and income. In fact, nothing could be further from the truth. Salisbury, in particular, had expended considerable energy in trying to curb James’s misplaced generosity, of which fact Ellesmere cannot have been ignorant. He was certainly aware that the Council had been trying to limit James’s gift-giving for the last 11 years. In September 1604, as a result of Council pressure, the king had directed letters to him and Cecil authorizing the stay of all grants of crown lands, even those made under the sign manual, until such times as a royal entail had been created.233 Egerton Pprs. 396-7 CSP Dom;. 1603-10, p. 150. Ellesmere’s remarks on impositions were no less unhelpful, as they convey the impression that a policy of reform had not previously been pursued. In fact, as Ellesmere must have known, Salisbury had lowered the imposts on staple goods twice during the negotiations for the Great Contract. This concession had failed to earn him the goodwill of the Commons, however, because the lower House objected not to the level at which impositions were set but to the fact that they were levied without reference to Parliament.234 ROBERT CECIL.

Whether Ellesmere ever laid his paper before his colleagues on the Council is unclear. However, he may subsequently have thought better of some of his observations. At a Council meeting held on 28 Sept. he called for the giving of gifts to be stayed and impositions to be reformed, but he evidently refrained from casting unjust aspersions on Salisbury and Dorset. He also advanced some constructive suggestions for increasing the king’s income, such as the dis-parking of royal forests and chases and improving royal wastes. In general, though, Ellesmere seems to have been bereft of ideas. The previous Parliament had foundered on the rock of impositions, but he had no idea how to prevent this from happening again. All that he could say on the matter was that impositions were ‘the hardest knot to untie’ and that he would not agree to allow the king’s right to levy them to be debated in Parliament. He yearned for ‘the old course of Parliament’, whereby the king granted his good laws and in return the subjects gave the king relief as often as he required. Recent departure from accustomed practice had proved disastrous. The Great Contract, with its attendant talk of ‘contribution’ in return for ‘retribution’, had ‘done much hurt’.235 Letters and Life of Francis Bacon, v. 204-5.

The Council’s deliberations on the subject of calling Parliament came to nothing, and were soon overshadowed by a more pressing matter: the discovery that Somerset and his wife had conspired to murder the earl’s former friend, Sir Thomas Overbury. The news that Somerset was implicated was relayed on 11 Oct. to the king, who immediately appointed a three-man commission led by Ellesmere to investigate.236 M.F.S. Hervey, Life, Corresp. and Collections of Thomas Howard, Earl of Arundel, 96; A. Somerset, Unnatural Murder, 305. Somerset was appalled, and protested that Ellesmere – who had thwarted his earlier attempt to obtain a general pardon - was unfit to head the inquiry, having taken a leading role in the prosecution of James’s late mother, Mary, queen of Scots. However, James was unimpressed at Somerset’s attempt ‘to rake up from the bottomless pit’ the tragedy of Mary’s trial and execution. Ellesmere had served him ‘with all honour and faithfulness’ for 13 years. There could be no question of his loyalty and fidelity. By selecting Ellesmere to lead the inquiry, James had not demonstrated bias against Somerset, as the beleaguered favourite suggested. On the contrary, he explained, ‘the more severe choice I make of persons for examination the more it is in your favour, if honour and trial of innocence be your end’.237 Letters of Jas. VI and I ed. G.P.V. Akrigg, 343-4. Shortly thereafter, Somerset was subjected to preliminary examination by Ellesmere and his fellow commissioners at York House.238 ‘Camden Diary’, 14; CSP Dom. 1611-18, p. 321.

Following Somerset’s commitment to the Tower in early November, Ellesmere’s decision to withhold the great seal from the earl’s general pardon was vindicated. Although this pardon did not extend to the charge of murder, the lord chancellor’s instincts, described as ‘prudent courage’ by one observer, were shown to have been correct.239 HMC Downshire, v. 387. It was soon apparent that Somerset and his wife would stand trial, and by the end of January 1616 a commission appointing Ellesmere as lord high steward for the proceedings had been drafted.240 Ibid. 420. However, it was not at all certain that he would be well enough to serve. On 5 Feb. he complained that, as a result of age, grief and infirmity ‘my sense and conceit is become dull and heavy, my memory decayed, my judgement weak, my hearing imperfect, my voice and speech failing and faltering’. In all the powers of my mind and body’ he had suffered ‘great debility’. He had intended to ask for permission to resign some years ago, but ‘love and fear stayed it’. ‘Now’, he told James, ‘necessity constrains me to it’.241 Cabala Sive Scrinia Sacra (1691), 235-6. Also printed in Somers Tracts, ii. 170, where it is undated. Four days later Sir Francis Bacon, the attorney general and the lord chancellor’s preferred choice of successor, wrote to the king of Ellesmere’s hope for ‘the raising of the honest’ after he died. On 12 Feb. he confidently predicted that Ellesmere, who lay speechless on his bed, was about to draw his last breath.242 Letters and Life of Francis Bacon, v. 420-1; HMC Downshire, v. 430.

Contrary to Bacon’s expectation, however, Ellesmere staged a remarkable recovery. Ironically, this was due in no small part to his old rival, Lord Chief Justice Coke, who took advantage of the lord chancellor’s seemingly terminal illness to allow a charge of praemunire to be brought against officials of the Court of Chancery for disturbing judgements at common law. Coke was determined to clip the wings of Chancery, and assured the jury, without success, that they had nothing to fear, as Ellesmere was now dead.243 Knafla, 171. News of Coke’s outrageous conduct soon reached Ellesmere, whose passions were so aroused that, just nine days after pronouncing him to be at death’s door, Bacon reported him to be full of life, ‘and almost like a young duellist that findeth himself behind-hand’.244 Letters and Life of Francis Bacon, v. 249. His spirits were further strengthened by the support of the king, who was no less incensed than the lord chancellor at Coke’s brazen behaviour. By 25 Feb. at the latest, Ellesmere was back on his feet, leading one observer to predict that soon there would be a battle ‘not inferior to the battle of Zama’.245 W. Sanderson, A Compleat Hist. of the Lives and Reigns of Mary, Queen of Scotland, of her son and successor (1656), 432; Holles Letters ed. P.R. Seddon (Thoroton Soc. xxxi), 116.

Throughout March, Ellesmere and Coke were at loggerheads with one another. However, they were required to bury the hatchet – at least temporarily – in May, when the earl and countess of Somerset stood trial for murder. As planned, Ellesmere presided over the court, while Coke served as chief prosecutor. Hostilities soon resumed, however, and in early June a commission was appointed to investigate King’s Bench headed by Ellesmere’s friend and ally, Archbishop Abbot. It was soon obvious that Coke, who was suspended from office a few weeks later, had been fatally wounded. It was therefore in the knowledge that the lord chief justice would never attain the high political office to which he aspired that Ellesmere now made arrangements to hand over the reins of Chancery to Bacon. In return for resigning his place he would receive the largely honorific position of president of the Council (an office long since in abeyance) during the minority of Prince Charles.246 CSP Ven. 1615-17, p. 245. However, the ambassador incorrectly reported that Bacon had now been sworn in as Ellesmere’s successor. He would also be rewarded with an earldom which, as the Venetian ambassador remarked, was ‘a dignity highly valued by him’. All that remained for him to decide, apparently, was whether to be known as earl of Cambridge, Buckingham or Flintshire.247 Letters of Philip Gawdy, 179; Holles Letters, 132; CSP Dom. 1611-18, p. 373; Chamberlain Letters, ii. 10.

Final months, June 1616-March 1617

When it came to the point, however, Ellesmere proved reluctant to translate words into action. By 22 June it was being reported that he was now unwilling to step aside, and that Bacon would have to look elsewhere for preferment.248 Chamberlain Letters, ii. 9. However, the birth in September of a son to his own son John altered his mind. Overcome with joy that his dynasty now seemed to be secure, Ellesmere once again began to explore the possibility of obtaining an earldom in return for the surrender of his office. To accomplish this end, Ellesmere realized that he would need to obtain the goodwill of both the king and Villiers, who had now replaced Somerset in the king’s affections. In September, therefore, he resigned to Villiers the lord lieutenancy of Buckinghamshire, which office he had held since 1607, ‘a courtesy that hath been very well taken by the king’. Shortly thereafter, James helped christen Ellesmere’s grandson in the chapel at York House, ‘to the infinite joy of the lord chancellor’.249 HMC Downshire, vi. 16-17, 31; Carew Letters ed. J. Maclean (Cam. Soc. lxxvi), 44, 47.

Ellesmere continued to cultivate Villiers over the next few weeks. However, his hopes of an earldom were soon dashed, as Villiers had only recently been elevated to a viscountcy, and was reportedly unwilling to allow anyone else ‘to leap over his head’.250 Chamberlain Letters, ii. 25. In November he was therefore obliged to settle for a viscountcy rather than an earldom. His creation, which formed part of the celebrations held to mark the creation of Prince Charles as prince of Wales, saw him become Viscount Brackley, after the Northamptonshire borough in which he had previously exercised electoral influence.

The newly created Viscount Brackley was undoubtedly downcast at not having obtained the dignity he desired, though he quickly had himself painted in his new Parliament robes, adjusted to reflect his promotion in the peerage.251 Belton House, Lincs. (National Trust, 436127). However, his hopes were briefly rekindled in early January 1617, when the king announced that he intended to bestow an earldom on Villiers. Once the favourite had secured this honour himself, what reason could there be to deny it any longer to the lord chancellor? In fact, Brackley was to be disappointed once more, as James wished to mark out Villiers, who was shortly thereafter created earl of Buckingham, for special favour.252 CSP Dom. 1611-18, pp. 422, 423.

Early in 1617 Brackley, in preparation for retirement to private life, divested himself of several of his lesser offices, such as the chancellorship of the university of Oxford and the high stewardship of the borough of St Albans.253 HMC Downshire, vi. 101; Chamberlain Letters, ii. 52; Carew Letters, 85-6. However, he was prevented by the king from taking the much more significant step of resigning as lord chancellor. Writing in February, James urged Brackley, whose health had once more taken a turn for the worse, to remain in post, on the grounds that God had fitted him for his office, to ‘the great benefit of the commonwealth’. He also begged him ‘to fight against disease as far as you can’ for, were he to succumb, ‘you shall remember how evil I may want you, and what miss your master shall have of you’. Brackley was undoubtedly touched by this glowing testimonial provided by his monarch, who, in a second letter, expressed the hope that he would enjoy for some time to come the fruits of the lord chancellor’s ‘long, wise and religious experience’.254 Sanderson, 432-3. However, he must also have realized that his dream of securing an earldom was now unlikely to become reality. The earldom would only be obtained when he retired, and James had made it clear that he had no intention of allowing this to happen.

James’s letters sent Brackley into a depression. He lost the ability to sleep, and refused to change his clothes. His disappointment was compounded by the failure of his son, Sir John, to obtain the lord presidency of the council of the Marches. In late February he refused to seal any of the patents sent to him. At the same time he bombarded the king with petitions asking to be allowed to resign. It was not long before James realized he had been beaten. On 3 Mar. he visited York House, where he found his lord chancellor in a pitiful state. Before he departed, a tearful James finally agreed to let Brackley resign. Two days later, he sent for the lord chancellor’s seals of office, and on 7 Mar. Bacon, who was rumoured to have paid Brackley no less than £8,000 for the post, was sworn in as lord keeper.255 CSP Dom. 1611-18, pp. 436, 449; HMC Downshire, vi. 129; Diary of Sir Richard Hutton ed. W.R. Prest (Selden Soc. xxxvii), 17, 132.

Now that he had divested himself of the lord chancellorship, Brackley intended to spend his remaining years in his native Cheshire, away from public life.256 Chamberlain Letters, ii. 62. He had no further use for many of his books and papers, and gave those on the management of Parliament to his politically ambitious chaplain, John Williams^* (subsequently lord keeper and archbishop of York), who later had need of them.257 J. Hacket, Scrinia Reserata (1693), i. 30-1. However, by the morning of 15 Mar. it was clear that he was close to death. Bacon rushed over to see him with a message from James, in which the former lord chancellor was promised the earldom of Bridgwater, the lord presidency of the Council and an annual pension of £3,000 for life. Brackley offered his thanks, but declared that it was now too late for him to enjoy these intended rewards. However, he added, he would be grateful if any one of these things were bestowed upon his son. He died half an hour later.258 Chamberlain Letters, ii. 65. The date of death recorded in his inquisition post mortem (13 Mar.) is incorrect: Northants. RO, E(B) 56, p.56.

Brackley left an enormous estate to his son, who was created earl of Bridgwater in May 1617, and was buried at Dodleston, in Cheshire, on 5 Apr., next to his first wife.259 ‘Camden Diary’, 25; Diary of Sir Richard Hutton, 17. His will, drawn up on 16 Aug. 1615, was proved just five days after his death.260 PROB 11/129, ff. 183v-4. As he had feared, his widow, not content with the provision made for her, filed a petition challenging the validity of this document. However, in February 1618 the court ruled that Brackley had been ‘sound in mind and in whole perfect memory’ when it had been drafted, and therefore awarded probate to Bridgwater.261 Wilkie, 223.

The death of Brackley – or rather Ellesmere, as he is better known - was not greatly lamented by common lawyers. Sir James Whitelocke^‡ remarked sourly that it would have been better had Ellesmere died 20 years earlier, ‘for he was the greatest enemy to the common law that ever did bear office of state in this kingdom’. Following his elevation to a viscountcy, Ellesmere was widely derided by common lawyers as ‘Viscount Breaklaw’.262 Liber Famelicus of Sir. J. Whitelocke ed. J. Bruce (Cam. Soc. lxx), 53. Ironically, the hatred of England’s common lawyers may actually have done much to commend the lord chancellor to the king, as James, accustomed to a different legal tradition, made little secret of his contempt for England’s common law. Certainly, James so admired Ellesmere that the latter was compelled to remain in office far longer than he wished. Among those who did not practise the common law, Ellesmere seems to have enjoyed something approaching popularity. Many with time on their hands are said to have ‘gone to the Chancery on purpose only to see his venerable garb ... and were highly pleased at so acceptable a spectacle’.263 T. Fuller, Worthies of Eng. ed. J. Freeman, 70.

Ellesmere’s period of office contrasts favourably with that of his successor, Bacon, whose eagerness to serve the turn of George Villiers meant that he passed whatever grants of monopoly were placed before him. Ellesmere was made of far sterner stuff, as his refusal to seal the pardon granted to Somerset in 1615 demonstrates. James, who recognized that it was the duty of his senior ministers to protect him from himself, valued this quality in Ellesmere, even though, on this particular occasion, he was incensed when the lord chancellor refused to obey a direct order. Indeed, he often remarked how grateful he was that Ellesmere subjected grants to close inspection rather than let them pass hurriedly.264 HMC Mar and Kellie, ii. 74. As the leading historian of the early Stuart judiciary has observed, it seems likely that Ellesmere ‘dammed the tide by his obstinacy and refusal to seal grants without scrutiny’.265 W.J. Jones, Pols. and the Bench, 57.

In the parliamentary sphere, Ellesmere was the first Speaker of the upper House in more than half a century to sit both on the woolsack and on the Members’ benches. He was also an acute observer of the changes that took place in the House of Commons early in James’s reign. His ‘special observations’ of 1611 should be required reading for all those wishing to study both these changes and their corollary, the emergence of a royal antipathy towards the English Parliament.