FIENNES, William (c.1583-1662)

Saye has gone down in history as ‘old subtlety’, but, aside from Arthur Wilson, who described him as ‘a serious subtle piece’, none of his contemporaries appear to have used the nickname, which does not appear to have been coined until 1658.38 [G. Wharton], Second Narrative of the Late Parliament (1658), 19. There is, however, general agreement that he was a malcontent. Wilson thought him ‘always adverse to court ways’, while the 1st earl of Clarendon (Edward Hyde^†), a hostile observer, described him as ‘proud, morose and sullen’, and ‘the oracle of those who were called puritans in the worst sense’. According to Clarendon, Saye steered the ‘counsels and designs’ of the king’s puritan opponents, and so ‘had the deepest hand in the original contrivance of all the calamities which befell [this] unhappy kingdom’, having not only ‘very great authority with all the discontented party’ but also ‘a good reputation with many who were not, who believed him to be a wise man’.39 Clarendon, Hist. of the Rebellion, i. 241-2; ii. 547. These views were echoed by Anthony Wood, who described Saye as ‘ill-natured, choleric, severe and rigid, and withal highly conceited of his own worth’. Disappointed of his ambitions at court, he made himself the ‘godfather’ of the ‘discontented party, the puritan, and took all occasions cunningly to promote a rebellion’.40 Ath. Ox. iii. 546. However, the royalist writer David Lloyd expressed a sneaking admiration for Saye: ‘his resolution [was] firm and immoveable; … his apprehension provident and foreseeing; … his discourse (full of fears and jealousies) dissatisfied and bold’.41 D. Lloyd, States-men and Favourites of Eng. (1665), 744.

Fiennes’s date of birth is usually given as 28 May 1582, but this is probably an error: the year date is derived from Wood, who stated that Fiennes was ‘about 14’ when he was admitted to New College, Oxford in 1596; the day and the month are the result of a misunderstanding. Collins’ Peerage claims he was 28 on 28 May 1613, when his father’s inquisition post mortem was held. In fact, the inquisition merely found that he was 28 on his father’s death, the date of which is unspecified. In 1586 Fiennes’ age was given as three by his father, which may suggest that he was born in 1583.42 Ath. Ox. iii. 546; Collins, vii. 22; WARD 7/51/88; SP12/193/68.

Clarendon said that Fiennes was ‘bred a scholar’. According to Wood, he was ‘trained up in grammaticals’ at Winchester and ‘logicals and philosophicals’ at New College. As his father was still a commoner at the time, Fiennes probably received an education more typical of the eldest son of a gentleman than of the eldest son of a nobleman. This would explain why he received a period of legal training at Lincoln’s Inn, something which had a lasting impact on him, as Fiennes was described as well versed in the law. He is also said to have travelled abroad, although this cannot be confirmed.43 Clarendon, ii. 547; Ath. Ox. iii. 546; Lloyd, 744. He was subsequently offered by his father as a page, allegedly to the secretary of the grand duke of Tuscany, and certainly to Sir Robert Cecil^* (subsequently 1st earl of Salisbury), but there is no evidence that he served either man.44 F. Davison, Poetical Rhapsody ed. N.H. Nicholas, i. pp. xxxii-xxxiii; HMC Hatfield, vii. 347.

In 1608 Fiennes’s father complained to Salisbury that Fiennes, now in his mid twenties, had joined a radical congregation whose members accused James I of Catholicism. Its leaders were men of little or no learning, being ‘tradesmen or mechanical fellows’, who ‘take upon them to know who shall be saved or condemned; and in strange forms either receive the sacraments or else forbear them’.45 Hatfield House, CP120/55. Although it is likely that Fiennes was subsequently reconciled to his father and returned to the established Church, he continued to hold radical puritan views. In the 1640s he opposed any ‘power coercive over a particular congregation’, which he considered ‘organical and complete’ in itself, although he thought that ‘apostolical bishops’ had more grounding in scripture than presbyteries.46 [Saye and Sele], Vindiciae Veritatis (1654), 122-3. Before the 1640s Saye probably thought there was little prospect of achieving radical reform. Instead, he focused on supporting godly social reform and Calvinist ministers in the Church of England, among them his friend, the minister John Preston, whose puritanism seems to have been much more moderate than Saye’s.47 N. Tyacke, Anti-Calvinists, 171.

Early career 1612-20

Saye inherited the Saye and Sele barony, together with Boughton Castle in Oxfordshire and a compact estate mostly situated near Banbury, sometime between 17 July 1612, when his father made out his will, and 11 Oct. following, when a letter from his neighbour, Sir Anthony Cope^‡, refers to both ‘my Lord Saye’ and ‘the late Lord Saye’.48 PROB 11/121, ff. 142-3v; Beesley, 260-1. Shortly after succeeding to his title, Saye may have applied to the king to be acknowledged as holding the Saye and Sele barony created in 1447. This right, which had been denied his father when the latter was raised to the peerage in 1603, would have given him precedence over many other men of baronial rank. However, if he did apply he was unsuccessful. This would help to explain an otherwise puzzling remark made after the Restoration by David Lloyd, that ‘the repulse, 1613’ was one of the factors which ‘inclined’ Saye ‘to popularity’. His additional observation that ‘princes’ need to ‘look … to whom they are unkind’ certainly suggests that the ‘repulse’ came from James I.49 Lloyd, 744.

Saye’s first opportunity to attend the Lords was in 1614, when he was recorded as being present at 21 of the 29 sittings of the upper House, 72 per cent of the total. Apart from 7 Apr., when no attendances were recorded, his absences occurred between 14 Apr. and 5 May, when he attended only one of eight sittings. There is no evidence that he was granted leave of absence. He made four recorded speeches, but was named to only two of the nine committees appointed by the upper House.50 LJ, ii. 691a.

On 23 May Saye argued that the Lords should meet the Commons, who had requested a conference about the legality of impositions, that is to say, unparliamentary duties laid on certain goods. Saye thought that it unnecessary for the upper House to consult the judges first, and warned his colleagues that they should not ‘lay any imputation on the lower House, as if they would impeach the king’s prerogative’ before giving them a hearing.51 HMC Hastings, iv. 253; W. Petyt, Jus Parliamentarium, 343. The Lords, however, decided against a meeting. Saye made a final attempt to salvage the situation on 26 May, when he argued that they could still agree to confer, but his motion was rejected.52 HMC Hastings, iv. 264.

In criticizing his colleagues’ imputations, Saye almost certainly had in mind remarks previously made by Richard Neile^*, bishop of Lincoln (later archbishop of York), who had argued that a conference would ‘strike at the root of the imperial crown’. Report of Neile’s speech caused uproar in the lower House, which protested to the Lords. On 31 May Saye argued that Neile should explain himself or else the Lords should themselves rule on whether the bishop had spoken the words complained of by the lower House.53 Ibid. 249, 274.

That same day, Saye spoke in favour of the Sabbath bill, which received a second reading. He praised the measure for banning ‘sports and games’, which were either ‘unlawful … of themselves’ or ‘unfit to be used’ on a Sunday, and he moved that it be passed without commitment. However, such a procedure would have been highly unusual, and his motion was rejected. Inexperience in parliamentary procedure was probably to blame, as Saye also moved for the bill to be engrossed even though this had already been done, the bill having been sent up by the Commons. He was subsequently named to the committee. His remaining committee appointment, on 31 May, was to attend a conference about the bill.54 HMC Hastings, iv. 265; LJ, ii. 708b, 713b; Procs. 1614 (Commons), 500.

In August 1614, after the Parliament had been dissolved, George Villiers^* (subsequently 1st duke of Buckingham), whose half-brother, William, had married Saye’s half-sister Elizabeth in 1612, was introduced to James. This was the start of a meteoric rise to favour, as a result of which Villiers became successively earl, marquess and duke of Buckingham. However, Elizabeth had died by 1618 and there is no evidence that Saye sought to capitalize on his sister’s relationship in his dealings with Villiers. He certainly never addressed Villiers as a kinsman.55 D. Fiennes, ‘William Fiennes, 1st Visct. Saye and Sele (1582-1662) and George Villiers, 1st duke of Buckingham (1592-1628)’, Gen. Mag. xvi. 334-5; CB, i. 124.

In July 1617 Saye was summoned before the Privy Council for having incited enclosure riots against two of his neighbours in north Oxfordshire, John Gill, a Chancery clerk, and Sir Thomas Chamberlain, the chief justice of Chester. In response, Saye claimed ‘that the matter was altogether mistaken in his behalf’ and that the information they had received from Chamberlain ‘was not well grounded’. On 13 Aug. the Council ordered the lord lieutenant of Oxfordshire, William Knollys^*, Viscount Wallingford (later earl of Banbury), to investigate.56 APC, 1616-17, pp. 319-22. It was no doubt as a result of Wallingford’s investigation that Saye and his alleged confederates were prosecuted by Star Chamber the following November. The dispute arose over claims made by freeholders of the manor of Wickham, in the parish of Banbury, to common rights in certain pastures. These lands had originally been part of the demesne of the manor, owned by Chamberlain, but had been acquired by Gill as part of an exchange. The prosecution claimed that Saye himself had no personal stake in the dispute, but had merely insisted that the parties refer the matter to his arbitration. However, the prosecution also claimed that, when Chamberlain initiated a suit against the freeholder in Chancery, Saye, seeking to assert his local authority, had employed ‘riotous persons’ to dig up the enclosures. Saye does not seem to have made an answer to the attorney general’s bill, but his co-defendants claimed that he did, in fact, have an interest in the dispute, as one of his servants, a freeholder in Wickham, had left his property to his 13-year-old son and made Saye one of his executors. They justified the freeholders’ common rights and argued that Saye had merely employed two labourers to make gaps in the hedges to enable them to pasture their sheep. This version of events was not nearly as dramatic as the accusations made by the prosecution. Nevertheless, it suggested that Saye had indeed acted unilaterally in taking down at least part of an enclosure on another man’s land. There is no evidence that the case proceeded any further, and Saye’s continuance as an Oxfordshire magistrate indicates that he suffered no official disgrace.57 STAC 8/25/6.

Saye was undoubtedly a supporter of James I’s son-in-law, the elector Palatine Frederick V, elected king of Bohemia in 1619. In 1620 he contributed £100 to the collection made by Frederick’s ambassador to England, Baron Dohna, to defend Bohemia against the Austrian Habsburgs.58 LIL, Hale ms 12, f. 481. However, he was less enthusiastic when James raised a benevolence that autumn for the defence of the Palatinate, informing the messenger sent to demand a response merely that he would attend the Council when he came to London after Christmas.59 SP14/118/44.

The third Jacobean Parliament and opposition to a benevolence, 1621-3

The Bohemian crisis forced James to call a Parliament, which met in January 1621. Saye was marked as present at 37 of the 44 sittings before the Easter recess, 84 per cent of the total. He was absent on 8 Feb. and ‘excused for sickness’ when the House was called two days later, but returned to the Lords on the 12th.60 LJ, iii. 14b. Between the Easter recess and the summer adjournment he was recorded as attending 36 of the 43 sittings, 84 per cent of the total; in addition on 2 May, when his appearance is omitted in the Journal, he spoke and received a committee appointment. He also received a committee appointment ostensibly in his absence on the morning of 8 May.61 LD 1621, p. 56; LJ, iii. 104b, 114b. He made 60 recorded speeches before the summer recess and was named to 33 of the 74 or 75 committees appointed by the Lords in that period. It is possible that Saye spoke softly, as Henry Elsyng, the clerk of the parliaments, complained on 18 May that he could not hear him.62 Add. 40085, f. 159v.

At the start of the Parliament Saye was named to the committee for privileges. He was subsequently added to the subcommittee for privileges, and as such helped check the clerk’s ‘scribbled book’ on 28 April.63 LJ, iii. 10b, 27a; Add. 40085, f. 79. In February he signed the nobility’s petition against allowing English purchasers of Irish or Scottish viscountcies to enjoy precedence on local commissions over English barons (like himself).64 Wilson, 187. According to Lloyd he was the principal architect of the petition, but this claim is not borne out by contemporary evidence.65 Lloyd, 745. Nevertheless, when the petition was debated in the Lords on 20 Feb., Saye moved that ‘every lord that will may put his hand [to it] and then to be presented to the king’. However, the upper House declined to endorse it.66 LD 1621, 1625 and 1628, p. 11.

On 24 Apr. Saye supported the motion of Robert Spencer^*, 1st Lord Spencer, for the Lords to sit the following day, even though Star Chamber was scheduled to meet then. He argued that there was a danger that otherwise it would be accepted ‘that we cannot sit …, unless the lords that are necessary to be at the Star Chamber [i.e. the privy councillors] be here also’. The motion was defeated following the intervention of Henry Wriothesley^*, 3rd and 1st earl of Southampton, who, announcing that there would be a ‘great cause’ heard in Star Chamber the next day, moved that the Lords should sit on another Star Chamber day instead. Saye renewed Spencer’s motion two days later, and on this occasion was successful.67 LD 1621, p. 12; LJ, iii. 90a.

On 14 Feb. Saye was named to attend the conference on the petition which the lower House proposed to submit to the king demanding action against English Catholics. When the clause calling on James to issue a proclamation enforcing the recusancy laws was questioned in the Lords on 16 Feb., Saye pointed out that the whole petition had already been read, both at the conference and in the upper House, and argued that ‘your lordships having engaged yourselves to the lower House’ should not ‘go back from that which we have already assented’. He questioned the argument that increased persecution of Catholics in England would endanger Protestants in Europe, not seeing ‘how the strength of Catholics here can help them [Protestants] there’. He also pointed out that the Council of Trent had committed the Catholic Church to the extirpation of heresy. Speaking again later in the same debate, he said there was a ‘great difference between Protestants abroad and papists here’. Catholicism was inherently subversive because, ‘if the pope command’, believers ‘must rebel on pain of damnation’, but this was not true of protestantism in Catholic countries. He queried whether ‘we have assented [to the petition] or not, and, ‘if we have, how shall we retreat’?68 LJ, iii. 17a; LD 1621, 1625 and 1628, pp. 6-7. Saye’s anti-Catholicism brought him into alliance with the bishops, and spoke at the second reading of the bill for greater repression of recusants on 30 April. He praised the complaints from the episcopal bench against Catholics as ‘good motions’, and successfully moved that they be considered in committee, to which he was appointed.69 PA, HL/PO/JO/5/1/1, p. 75; LJ, iii. 101a.

During this Parliament Saye once again showed his commitment to moral reform. When a new Sabbath bill was given a second reading on 8 Mar., Saye called for hunting to be forbidden on Sundays, whereupon he was named to the committee.70 I. Temple Lib., Petyt ms 538/7, f. 223v; LJ, iii. 39b. At the second reading of the bill against profane swearing, on 30 Apr., Saye ‘made an earnest speech that this bill sleep not’, and was rewarded by being the first baron to be appointed to the committee.71 LD 1621, p. 41; Add. 40085, f. 82. On 4 May he was also appointed to consider the bill for repressing drunkenness, which he defended after it was reported five days later.72 LJ, iii. 107b; LD 1621, p. 76.

Saye showed considerable interest in the prosecution of monopolists. On 3 Mar. he supported the motion of John Holles^*, Lord Houghton (subsequently 1st earl of Clare) for a conference with the Commons on apprehending the errant patentee, Sir Giles Mompesson^‡, which he was appointed to attend.73 LD 1621, 1625 and 1628, p. 12; LJ, iii. 34a. On 12 Mar., following a further conference at which the lower House presented their complaints about monopolies, Saye moved for the Lords to consider whether the patents were unlawful in themselves and whether they were ‘burdensome to the commonweal’. He argued that legal representatives of those who had originally complained to the Commons should be heard by the Lords. He also queried whether those royal officials responsible for approving the patents, who included some senior privy councillors, should sit in the upper House when monopolies were debated. This last proposal was controversial, and led Prince Charles (Stuart^*, prince of Wales) to remark that if Saye ‘can accuse any, let him’. Nevertheless, Saye was named to attend a further conference held the next day to receive evidence gathered by the Commons. At that conference the favourite, George Villiers, by now marquess of Buckingham, attempted to defend his involvement with the monopolies before he was called to order by his colleagues. When the incident was debated in the Lords, Saye argued that Buckingham had been at fault for speaking without permission.74 LD 1621, 1625 and 1628, pp. 19, 21; LJ, iii. 42b; M.L. Schwarz, ‘Lord Saye and Sele’s Objections to the Palatinate Benevolence of 1622’, Albion, iv. 16.

On 15 Mar. Saye was named to the committee to investigate the patent for inns. He moved the Lords to take steps to ensure that the other patentees did not flee, as Mompesson had done. When the question of the gold and silver thread patent was debated, on 22 Mar., Saye argued that the freedom of craftsmen to practise their trade could be reconciled with the need to preserve bullion by insisting that workmen only use imported metal. His motion for the attorney general to draw up a proclamation to that effect was approved, although none was ever issued.75 LJ, iii. 46b, 65a; LD 1621, 1625 and 1628, pp. 25, 35.

When Mompesson’s sentence was debated on 26 Mar., Saye argued that it was necessary to make an example of Mompesson, or else it would be reported that ‘parturiunt montes, nascetur ridiculus mus’ [the mountains labour and a silly mouse is born]. Mompesson should be ‘sentenced as high as may be’, short of execution, meaning that he should be banished and his estate confiscated ‘to give satisfaction to the wronged’; mercy was to be left to the king. His speech may have caused offence as he felt it necessary to explain himself later in the debate.76 LD 1621, 1625 and 1628, pp. 45-6; LD 1621, pp. 135-6.

Saye was no less keen to pursue the other patentees. On 26 Apr. he joined Southampton in contradicting Thomas Howard^*, 21st (or 14th) earl of Arundel, who had argued that Matthias Fowles, one of the gold and silver threat patentees, was ignorant of the deceits practised in that industry. On the contrary, Saye asserted, Fowles must have known what was going on because it was he who had offered ‘to discover it for the good of the commonwealth’. Later in the debate he protested that Fowles should not be allowed to pass the blame onto others.77 LD 1621, p. 28. The following day Saye disagreed with Southampton over another monopolist, Sir Francis Michell. The earl wanted to defer Michell’s sentencing so that he could be further cross examined, fearing a guilty sentence would invalidate Michell’s evidence. But Saye argued this was unnecessary, as the Lords could simply order ‘that his [Michell’s] testimony may be good notwithstanding the censure’ of the House. However, he failed to persuade his colleagues, and Michell’s sentence was put off until 4 May.78 Ibid. 37-8. On that day Saye argued that the Lords should consider ‘how far’ Michell ‘hath gone with Mompesson’ and pass a similar sentence accordingly. However, when sentence was debated Saye’s only contribution was to argue that ‘his testimony may not be taken in any court’, which was ignored.79 PA, HL/PO/JO/5/1/1, p. 96; LD 1621, p. 65.

In addition to the prosecution of the patentees, Saye took a keen interest in the proceedings which led to the impeachment of the lord chancellor, Francis Bacon^*, Viscount St Alban. In the debate on 20 Mar. concerning the corruption charges presented the previous day by the Commons against Bacon, Saye supported Arundel in moving for a message to be sent to the lower House, arguing that it should express ‘a good respect’ to the Commons.80 LD 1621, 1625 and 1628, p. 29. The following day he was appointed to one of three committees assigned to gather evidence against Bacon. Two days later Southampton, the senior peer on Saye’s committee, reported that one of the witnesses had refused to answer for fear of incriminating himself. Saye, in contrast to the position he would later adopt in the Michell case, argued that the evidence from the witnesses against Bacon should not be admissible in any other court, a proposal the House endorsed. The House went into committee, whereupon Saye proposed that litigants who had bribed Bacon should not suffer for it. He argued that ‘if giving [money] shall make a decree void, many just decrees, nay most of them’ would be rescinded ‘for money was given commonly for all’, it being necessary to ‘buy justice if we cannot have it otherwise’.81 Ibid. 29, 37, 39; LJ, iii. 58b, 67b.

On 19 Apr. Saye and the other members of the three committees were ordered to meet together to prepare a summary of the charges against Bacon. On Saye’s motion they were also authorized to continue to receive complaints against the lord chancellor and collect evidence.82 LJ, iii. 80a; LD 1621, p. 10. Bacon subsequently admitted his guilt, but in the debate which followed, on 24 Apr., Saye argued this was too little, too late, ‘considering the many corruptions of bribery’ which had been discovered. Later that morning he moved that Bacon be charged at the bar of the House, and cited the precedent of Michael de la Pole^†_, 1st earl of Suffolk (c.1330-89), the first lord chancellor to have been impeached. He argued that Bacon should be treated in the same way as Sir Henry Yelverton^‡, the disgraced former attorney general who had prosecuted Saye in Star Chamber in 1617 and whose case had been referred to the Lords by the king. He also wanted the Lords to press James into taking the great seal from Bacon. He reiterated both points the following day.83 LD 1621, pp. 14, 16, 20-1; PA, HL/PO/JO/5/1/1, p. 43. When the question of sentence was debated on 3 May, Saye called for Bacon to be ‘degraded [from the peerage] for life’, he being ‘unfit to sit here again amongst us’. Saye believed that membership of the nobility should not be an inalienable right but, as he subsequently wrote, a reward for ‘merit and well-deserving of the commonwealth’, which should be taken away upon ‘demerit’. However, although Bacon was barred from subsequently attending the upper House, he remained a nobleman.84 LD 1621, p. 62; Winthrop Pprs. IV: 1638-44 ed. Mass. Hist. Soc. (1944), 267.

On 30 Apr. Yelverton was brought to the bar of the Lords, where he attacked Buckingham’s influence over James, comparing the former to Hugh, Lord Le Despenser^†, the favourite of Edward II. This provoked a furious reaction from Prince Charles, who argued that Yelverton was suggesting that James was a weak king, like Edward II. However, Saye asserted that Yelverton ‘wronged the lord he spake of [Buckingham], not the king’.85 LD 1621, p. 52. James responded by taking Yelverton into his own custody, which act Saye regarded as a breach of the upper House’s jurisdiction. Speaking on 2 May, he argued that the case was ‘in no wise left to the king’ and that most of his colleagues had not thought Yelverton had impugned the king’s honour: ‘had it been put to the question … Sir Henry Yelverton would have been cleared’.86 PA, HL/PO/JO/5/1/1, p. 86. Saye was probably keen to exonerate Yelverton from the charge of dishonouring the king, not because he was personally sympathetic to his former prosecutor, but because he wanted to use the disgraced attorney general’s testimony to attack the roots of the abuse of monopolies in the Jacobean court.

Thirteen days later Saye again defended Yelverton, arguing that he ‘conceived he [had] meant not to touch the king’. However, perceiving that the cause was lost, he pointedly absented himself from the chamber when the Lords voted to condemn Yelverton.87 Ibid. 116-17. The case provoked a bitter dispute between Arundel and Spencer after the former argued against granting Yelverton a further hearing to explain himself. Saye clearly sided with Spencer, as on 17 May he supported the motion of Edward Denny^*, Lord Denny (later earl of Norwich), who defended Spencer against the slur on his ancestry cast by Arundel, and proposed putting the question whether Arundel was worthy of censure.88 LD 1621, p. 91.

Saye’s attendance was recorded at 20 of the 24 sittings of the upper House after the session was resumed on 20 Nov., 83 per cent of the total. In addition, he spoke on two days when he was not listed as present, on 3 and 8 December. He also attended the dissolution meeting on 8 Feb. 1622. During this period he received five (out of a possible 11) committee appointments and made 18 recorded speeches.

On 28 Nov. Sir Edward Coke^‡ brought up five bills from the Commons and a request to hasten the passage of the measures still under discussion, as the lower House wanted the session to be brought to an end before Christmas. Saye urged his colleagues to comply with this request and also ‘commended’ the concealments bill, which he had been nominated to consider on 17 May, only to have his name deleted from the committee list. He was then added to the committee.89 LJ, iii. 174a-b; LD 1621, p. 98; PA, HL/PO/JO/5/1/1, p. 122.

Saye had been appointed to consider the bill against monopolies on 28 May, which he defended at its third reading on 1 Dec., arguing that ‘it cannot touch the king’s prerogative’ because it only concerned things which were already illegal. When the debate went against him, Saye tried to get the bill recommitted, but it was ruled that this was contrary to procedure. Consequently it was rejected and Saye was named to a committee to draw up a new one.90 LJ, iii. 137a, 177b; LD 1621, pp. 103-4. On 6 Dec. Saye spoke in favour of the bill to enable the Staplers to export cloth, one of the measures Coke had brought up to the Lords on 28 November. Saye’s support for the measure probably reflected the importance of sheep farming on his estates; he blamed the low price of wool on the Merchant Adventurers’ monopoly and undoubtedly hoped that opening up trade would increase exports of woollen textiles and so boost the demand for wool. He was named to the committee.91 LD 1621, p. 110; LJ, iii. 184a; N. Bard, ‘Estates of the Barony of Saye and Sele in Pre-Revolutionary Eng.’, Cake and Cockhorse, vi. 110-11, 117.

Saye had evidently been alarmed by the seizure of the papers of John Selden^‡, the eminent legal scholar, during the summer recess. Selden had been appointed by the subcommittee for privileges, of which Saye was a member, to research the privileges of the peerage. When the seizure was debated in the Lords on 20 Nov., Saye argued that ‘this may much endanger their privileges, for no difference between taking away of a bill or of these papers from a committee’. He called for the officials concerned to show their warrant for the seizure, and was almost certainly the ‘S’ who argued that this motion ‘doth not touch the king’s prerogative’, as the Lords had no idea whether or not the king had authorized the search.92 LD 1621, pp. 100-1. Saye was one of the members of the subcommittee who received the fruits of Selden’s labours on 6 December.93 Stowe 354, f. 62v.

Saye was opposed to clergy holding civil offices, this ‘being inconsistent with that which God doth call them and set them apart unto’.94 Two Speeches in Parliament of the Right Honourable William, Lord Vicount [sic] Say and Seale (1641), 2. This viewpoint may have induced him to support the complaint of Sir John Bourchier^‡ against the new lord keeper, John Williams*, bishop of Lincoln (later archbishop of York), over a judgement Williams had made in Chancery. When Bourchier’s petition was presented to the upper House on 3 Dec., Saye urged the Lords to consider the complaint, ‘for no appeal from Chancery but hither’, a point he reiterated after Williams defended himself. Indeed, he moved for a search of precedents to be made to establish the procedure for such appeals.95 LD 1621, pp. 107-8.

On 10 Dec. the Lords summoned Bourchier to attend the next day to be questioned about his complaint. However, the following day, when it became evident that many of his colleagues wanted to restrict themselves to determining whether Bourchier had had a sufficient hearing, Saye and his allies, who wanted the whole case reopened, questioned whether this was what the Lords had ordered the day before, although it was ‘affirmed by divers’. Williams then drew up three questions to be put to Bourchier, which were approved by the House. Saye, however, wished to add a fourth: ‘whether his [Bourchier’s] counsel or himself did offer any more witnesses to be heard?’, but this was evidently dismissed. Saye subsequently moved for witnesses to be heard, but the upper House rejected Bouchier’s complaint. When the latter’s punishment was debated the following day, Saye argued that Bourchier should ‘not … be censured at all’.96 LJ, iii. 191a; LD 1621, pp. 113-14, 116, 119.

The latter stages of the 1621 Parliament were marked by conflict between the Commons and the king about the former’s right to debate foreign policy, which led the lower House to suspend business on 7 December. It is possible that Saye sympathized with the Commons and that this prompted him, on 14 Dec., to oppose ‘as yet’ the proposed conference about the Palatinate. He may have feared that a request for a meeting would be interpreted by the lower House as pressure from the Lords to resume business.97 LD 1621, p. 122.

The suspension of business ensured that a third subsidy, which had been voted in principal by the Commons, was not passed. As a consequence James I initiated a new benevolence to raise money for the Palatinate in the New Year. At the end of March 1622 the Privy Council ordered the justices of the peace of every county to summon all taxpayers and other prominent persons within their locality and ‘move them to join cheerfully in this contribution in some good measure answerable to that yourselves shall do’. They were also instructed to return the names not just of those who contributed but also those ‘that out of obstinacy or dissatisfaction shall refuse to contribute therein’.98 APC, 1621-3, pp. 176-7. However, on 16 May, Saye was summoned before the Council, not only for failing to contribute himself but also for dissuading others from doing so.99 Ibid. 222; Yonge Diary ed. G. Roberts (Cam. Soc. xli), 61; ‘Camden Diary’ (1691), p. 80; T. Birch, Ct. and Times of Jas. I, ii. 312.

An account of Saye’s examination by the Council survives among the papers of Sir Matthew Hale^‡; it originally belonged to Selden.100 J. Hunter, Cat. of the MSS in the Lib. of the Hon. Soc. of Lincoln’s Inn (1838), 16, 23-4, 26; Schwarz, ‘Lord Saye and Sele's Objections to the Palatinate Benevolence ’, 12-22. It is not clear who drew up the account or how Selden obtained it. It is possible that it was drawn up some time after the event. The account of proceedings on 4 June includes a question put to Saye by ‘my lord duke’. At that date the only duke on the Council was Ludovic Stuart^*, 2nd duke of Lennox [S] and earl (subsequently duke) of Richmond. However, Lennox was not recorded as attending the Council that day. It may instead refer to Buckingham, who was certainly present, but not made a duke until the following year.101 LIL, Hale ms 12, f. 481v; APC, 1621-3, p. 242. A lengthy account of Saye’s examination was in circulation shortly after the event, as it was summarized by Simonds D’Ewes^‡ in his diary in early July. Selden’s text may be a version of this account, which was perhaps circulated by Saye himself, or friends on his behalf, in order to cast himself in the best possible light. (D’Ewes writes that he ‘answered the Privy Council very wittily and judiciously’). It is consistent, broadly speaking, with a letter Saye subsequently wrote to Buckingham, and is therefore probably accurate.102 D’Ewes Diary, 1622-4 ed. E. Bourcier, 85; SP14/38/5.

Saye was first questioned by the Council on 23 May, when the lord president, Henry Montagu^*, Viscount Mandeville (subsequently 1st earl of Manchester), informed him that he was the reason the benevolence had been ‘so coldly carried’ at a meeting of the Oxfordshire justice of the peace. This prompted Saye to launch an attack on the benevolence, arguing that it was the birthright of every property owner in the country that no one should be ‘pressed’ to ‘part with money … in any other course then by their own full and free consent in Parliament’. He added that ‘he knew no laws, besides by Parliament, to compel men to give away their own goods’. He assured the Council that he had not expressed this opinion ‘publically in a general meeting’, but now, being in the privacy of the Council chamber, he thought ‘he might without offence declare himself clearly unto their lordships’. Saye’s answer was promptly dismissed as irrelevant by Arundel. Saye’s offence was not his opinion of the benevolence, but his failure to obey the Council’s order to implement its collection. In response, Saye admitted that when the benevolence had been discussed at the Oxfordshire quarter sessions he had moved for the business to be deferred ‘to a more general meeting’. However, he claimed he had done so because of poor attendance by the justices, and said that ‘others were of the same opinion also’.103 LIL, Hale ms 12, f. 481.

At the next meeting, on 31 May, the Council informed Saye that the king was interested in Saye’s opinion on the benevolence. He was therefore ordered ‘to give a reason why he thought the subject’s right was impeached or taken away by this course of giving without Parliament’. However Saye, probably fearing an attempt to entrap him into saying something that could be construed as seditious, now apparently wished to say as little as possible. He admitted having contributed to Baron Dohna’s collection, but ‘humbly desired to be spared from entering into a dispute of the subject’s right’. He also refused to give the names of those to whom he had previously expressed his opinion about the benevolence. When asked what else the king could do to raise money quickly for the Palatinate, ‘he desired to be spared’ from expressing an opinion.104 Ibid. f. 481r-v.

Recalled to the Council on 4 June, Saye was told by Mandeville ‘that the king commanded him on his allegiance’ to give ‘a more full answer’. In response Saye argued that the order to return the names of refusers introduced an element of compulsion into the benevolence and that ‘he did not know but that the liberty of the subject may be further touched by consequence’. He admitted having informed others ‘that for his own particular he would have no hand in the business’, but he refused to name those to whom he had said this, and demanded that the Council produce witnesses regarding the words he had spoken rather than press him to accuse himself. He again refused ‘to prescribe the king what course he should take’ about the Palatinate, despite being informed by the Council that ‘the king commanded it’. In so doing he implicitly denied that it was the role of the nobility to act as the king’s consiliarii nati, with a right and duty to advise the monarch. After an interval in which the Council withdrew, Saye was pressed to explain what he considered the differences were between the benevolence and the collection of Dohna. He replied that James, unlike Dohna, could call a Parliament to raise money for the Palatinate if he wished.

Saye’s final session before the Council, on 6 June, amounted to a passing of sentence rather than a further examination. Mandeville, returning to the question of Saye’s conduct at the meeting of the Oxfordshire justices, claimed that Saye had risen up and left ‘when that business [i.e. the benevolence] was proposed’, but this was never proven, as a marginal note in the surviving record indicates. Nevertheless, as a result of his ‘carriage in the country … and also at this table’, the king decided to commit Saye to the Fleet until further notice. In response, Saye asked the Council to inform the king that ‘his behaviour and carriage … had not savoured of any discontented evil affection’, to which some of the councillors, especially Arundel and Secretary of State, Sir George Calvert^‡, objected. Next he requested permission to have some of his servants attend him and to write to his wife. However, he was assured that he would not be subject to close confinement but have ‘the liberty of the house’. Two days later he was purged from the Oxfordshire bench.105 Ibid. ff. 481v-2; R. Cust, Chas. I and the Aristocracy, 2; APC, 1621-3, p. 244.

It is perhaps a mark of Saye’s obscurity at this date that D’Ewes did not know of his imprisonment until a month later. Nevertheless, Saye’s examination and incarceration was widely reported and discussed, propelling him to much greater prominence.106 D’Ewes Diary, 1622-4, 85; Add. 72275, f. 143v; Holles Letters (Thoroton Soc. xxxv) ed. P.R. Seddon, 252; Chamberlain Letters ed. N.E. McClure, ii. 439. Towards the end of the year, Saye’s wife petitioned the king on his behalf. According to a letter subsequently written by Saye to Buckingham, it was only from the king’s response to this petition that Saye learned the cause of his imprisonment. This was that he had ‘laid a tax upon him [James] and the Council as if it were an unconscionable thing for the king to receive money out Parliament, if the subject would freely give it’. Saye denied thinking any such thing. However, he admitted that he ‘thought that such freedom is to be left unto him [the subject], as that he may if he will choose rather to give in Parliament’, which principal he derived from the property rights of the individual. Saye also learned from Buckingham that he was charged with having failed in his duty as a magistrate by not executing an order from the Council, and by dissolving a meeting held about this matter without fixing a further day. Saye denied these accusations, claiming that he had expressed his opposition to the benevolence solely to the Council, and that he had only deferred discussion ‘unto a more general assembly of the justices … at the next sessions’. He also denied that it was the duty of every magistrate to execute all orders sent to them, and requested a formal trial, ‘where my accusers may inform upon their oaths … and the law determine’.107 SP14/38/5.

On 4 Feb. 1623, possibly thanks to Buckingham, Saye was released from the Fleet and placed under house arrest, not at Boughton, but at a property he owned in Gloucestershire.108 APC, 1621-3, p. 404. Shortly after, Buckingham secured permission for Saye to remain for a few days in London before departing for the country to see his doctor and transact some business.109 Fortescue Pprs. ed. S.R. Gardiner (Cam. Soc. n.s. i), 191-2. During the course of the year his conditions of confinement were gradually eased; in September he was given permission to live at Boughton, but the order was backdated to July, suggesting he had moved there some time earlier.110 APC, 1623-5, pp. 68, 87; CSP Dom. 1623-5, pp. 31, 77.

By 14 Jan. 1624 Saye had sent a ‘submission’ to Lord Keeper Williams. This is now lost, but Williams, in forwarding it to the king, stated that Saye’s offence was ‘but an omission in his office of a justice of the peace’, which suggests that it included an acknowledgement by Saye that he had been at fault in failing to implement the Council’s instructions. Despite Saye’s earlier support for Sir John Bourchier, Williams tried to persuade James to accept Saye’s submission and restore him to the bench, describing Saye’s abilities as ‘more than ordinary’. This was doubtless because Prince Charles and Buckingham now wanted a war with Spain and therefore wished to build bridges with supporters of the Palatinate cause ahead of the forthcoming fourth Jacobean Parliament. James, who was rather less eager for war, appears to have been reluctant to accept Saye’s submission. On 2 Feb. Williams informed Buckingham that Charles wanted him to persuade James to accept Saye’s reappointment as a magistrate, but this was not achieved for another 16 days.111 Fortescue Pprs. 194-5; Cabala (1691), i. 274-5.

The 1624 Parliament

As late as 21 Feb. John Chamberlain thought that Saye would not be summoned to Parliament, or would receive a writ ‘pro forma’, with instructions to stay away.112 Chamberlain Letters, ii. 546. By then, however, Saye had already attended both the prorogation meeting (16 Feb.) and the first day of the session (19 February). Recorded as present at 87 of the 93 sittings of the session, 94 per cent of the total, he may also have attended on 5 Mar., 27 Apr., 8 May and the afternoon of 22 May, when he was not listed as present but either spoke or received a committee appointment.113 LJ, iii. 246a, 323b, 346b, 363a; Add. 40087, f. 54v; LD 1624 and 1626, p. 103. He received the proxy of Fulke Greville^*, 1st Lord Brooke, a privy councillor, probably after 29 Apr., the last date Brooke attended. Brooke, like Saye, was a patron of the puritan divine John Preston.114 LJ, iii. 212b; T. Ball, Life of the Renowned Doctor Preston, ed. E.W. Harcourt, 27. Saye made 48 recorded speeches and was named to 57 of the 105 committees appointed by the Lords that Parliament.

Early in the proceedings Saye was appointed to the committee and subcommittee for privileges. The latter appointment seems to have been ineffective though as, three days later, on Saye’s motion, the committee for privileges had to be authorized to appoint a subcommittee empowered to hire researchers to search for precedents.115 LJ, iii. 215a-b, 219a. This subcommittee was also instructed to inspect the Journal. However on 18 June, after the prorogation, Saye was among those who signed a memorandum in the draft Journal to the effect that they could not complete their task because the record was incomplete for certain days.116 PA, BRY/13, f. 86v. Although not appointed to the committee for petitions, established on 9 Mar., Saye moved on 9 Apr. that this body should sit on a fixed day of the week. This suggestion was approved, but his additional motion that the committee should report all petitions to the House was defeated.117 Add. 40088, f. 26v; LJ, iii. 253a, 296b.

On the afternoon of 27 Feb., following the report of Buckingham’s narration of the Spanish Match negotiations, Saye called for a conference with the Commons in order to prepare advice from both Houses to the king. He queried whether they should deal with the Palatinate and the Match together or separately, wanting the Lords to be prepared for the conference on both points so that they could present the case against the treaties effectually without being outdone by the Commons.118 LD 1624 and 1626, p. 9; PA, HL/PO/JO/5/1/2, f. 19v. The following day William Herbert^*, 3rd earl of Pembroke, argued that the Lords should not vote on the treaties until they had conferred with the Commons. However, Saye wanted the upper House to give a clear lead, arguing that it was ‘fit to come to a resolution and pass by vote what we will deliver at the conference’. He was subsequently named to the committee to search for precedents about treaties and supply.119 LD 1624 and 1626, p. 10; LJ, iii. 236b.

On 1 Mar. Saye warned that there was ‘danger in delay’, and moved that a message be sent to the Commons clearing Buckingham from the accusations which the Spanish ambassadors, angry the duke had charged their king and his ministers of deception, had levelled against him. Saye argued that the ‘mischief of the Spanish ambassadors [was the] greatest honour’ to Buckingham, and was subsequently named to confer with the Commons about this matter. He was also appointed to the munitions committee.120 LD 1624 and 1626, p. 12; LJ, iii. 237b, 238a. The following day the House went into committee to prepare for a further conference. Saye argued that the Commons should be told that the Spanish had planned to restrain Prince Charles in Spain, and that they had at one stage agreed to help restore the Palatinate by force. He also supported George Abbot^*, archbishop of Canterbury, who moved to prepare a summary of the reasons why the king should break off the treaties. He called for a committee, and was subsequently named to a joint committee of both Houses to draw up just such a document.121 LD 1624 and 1626, p. 17; LJ, iii. 242b, 244b. After Southampton moved, on 4 Mar., that the advice to the king to break off the treaties should be accompanied by an offer of supply, Saye (no doubt concerned that this would intrude on the lower House’s prerogative over taxation) argued that ‘if this be embraced then to acquaint the Commons with it’.122 LD 1624 and 1626, p. 20.

Following Middlesex’s report on the state of the crown’s finances on 11 Mar., Saye supported a proposal to send a message to the Commons for a conference to enable the prince to reassure the lower House that any taxes voted would be used to fund the war. He was named to both the committee and the subsequent conference.123 Ibid. 26; Add. 40087, ff. 72, 73. Saye’s concern to keep the Commons fully informed was entirely typical, for ever since the 1614 imposition debates he had been keen for the Lords and Commons to work together. That being said, Saye was far from believing that the Lords should defer to the Commons in all things. When the lower House informed the Lords, on 12 Mar., that Catholics were exporting bullion, Saye moved for the matter to be dealt with by ‘a committee of this House only, to prevent all inconveniences with them’.124 LD 1624 and 1626, p. 28. The extent to which Saye enjoyed informal contact with the lower House is difficult to establish. He was certainly a friend of the Speaker, Sir Thomas Crewe^‡, and probably of other prominent Members of the Commons. However, there is no evidence that he exercised any electoral patronage at this date.125 N. Bard, ‘Local Influence and Fam. Connections of the first Visct. Saye and Sele’, Cake and Cockhorse, vii. 81.

On 2 Apr. Saye was named to the subcommittee established to examine witnesses concerning accusations levelled against the lord treasurer (Lionel Cranfield^*, 1st earl of Middlesex) concerning the funding of the Ordnance Office. On his motion it was left to the parent committee for munitions to draw up the questions to be put to the witnesses.126 LJ, iii. 286a; Add. 40088, f. 5. Following Middlesex’s allegation that there was a conspiracy against him, Saye moved that the lord treasurer ‘either names the parties or clear the Houses’.127 LD 1624 and 1626, p. 61. Following the report from the subcommittee for munitions on 12 Apr., Saye supported Pembroke’s motion for Mandeville to draw up a charge against Middlesex. He and the rest of the members of the subcommittee were thereupon instructed to assist the lord president.128 Ibid. 66, 69; LJ, iii. 301b. On 3 May Saye and Houghton were ordered to draft a response to a petition from Middlesex containing the names of his defence witnesses and the interrogatories he wanted put to them.129 LJ, iii. 337b, 339a-b.

Middlesex was put on trial in the Lords on 7 May. However, four days later he failed to appear, but sent a petition claiming to be ill. On Saye’s motion a committee was sent to establish the truth about the lord treasurer’s health, which included Saye himself. On the committee’s return, Saye reported that Middlesex had accused the Lords of ‘unchristian dealing’.130 Add. 40088, f. 72; LJ, iii. 371b; LD 1624 and 1626, p. 72.

When the Lords debated their verdict on 12 May, Saye argued that the lord treasurer was guilty of those charges which concerned the great wardrobe, the customs farmers and the Court of Wards. He accused Middlesex of ‘mere extortion’ for procuring a New Year’s gift from the custom farmers, and argued that Middlesex had failed to account for the great wardrobe and was guilty of ‘leaving unprovided things necessary for the king’s use’. Even the charge concerning the farm of the sugar duties, about which Middlesex was cleared by the Lords, was regarded by Saye as ‘an aggravation’ because it had been procured by Middlesex on ‘false pretences of good service’.131 LD 1624 and 1626, pp. 74, 76, 79, 81, 84; PA, HL/PO/JO/5/1/3, f. 70v. When the Lords discussed their sentence the next day, Saye argued Middlesex’s punishment should be proportionate to his profits from office. Stating that ‘his gains [had been] great and vast’, he moved for a fine of £80,000 to be imposed, arguing that there were precedents for the Lords to confiscate Middlesex’s lands. However, his colleagues settled on £50,000.132 LD 1624 and 1626, pp. 89-90.

On 3 Apr. Saye was named to attend the conference about the petition against recusancy proposed by the Commons. He took a more moderate line in 1624 than he had done when faced with a similar petition in 1621, agreeing with Prince Charles, who argued that the proposed preface to the petition was ‘too sharp’. He argued that there was ‘no conveniency at this time to use bitter words’ and that the preface was unnecessary as ‘we may have our effect without the same’. Saye’s motion for Jesuits to be given a specific day by which they were to leave the country or face the death penalty was approved by Buckingham. Saye was appointed to a committee to consider the petition and, when Abbot reported an amended version the following day, he supported the motion to propose a subcommittee of both Houses to draw up a justification, to be presented to the king if necessary. On 10 Apr. it was debated whether to ask the king to issue a proclamation enforcing the laws against Catholics, but Saye was among those who thought that the matter should be left to James.133 LJ, iii. 287b, 289a; LD 1624 and 1626, pp. 54-5, 59, 63.

When the Commons drew up charges against Samuel Harsnett^*, the anti-Calvinist bishop of Norwich (subsequently archbishop of York), Saye was less inclined to moderation. On 14 May he was named to attend the conference to hear the accusations against the bishop; four days later, he moved for a committee to examine them. He protested after Prince Charles proposed that four of the six charges be referred to High Commission, arguing that all the charges should be examined and judged by the House. He failed to move the Lords and all six charges were referred to High Commission.134 LJ, iii. 384b; LD 1624 and 1626, pp. 96-7.

Saye seems to have attached considerable importance to the legislative business of the 1624 Parliament, for on 14 May he moved the House, without success, to sit that afternoon ‘to dispatch public and private bills.135 LD 1624 and 1626, p. 95. Named on 18 Mar. to consider the monopolies bill, he defended this measure after it was reported on 20 May, twice speaking to defend the use of the penalty of praemunire.136 LJ, iii. 267b; LD 1624 and 1626, p. 94. He probably supported the usury bill, which reduced the maximum legal rate of interest to eight per cent and which he was named to consider on 28 Apr., as he subsequently wrote a manuscript tract defending interest at that rate.137 LJ, iii. 325a; K.O. Kupperman, Providence Island, 299-8. He evidently also supported the bill concerning inns, moving for it to proceed on 27 May, when he himself was added to the committee.138 Add. 40088, f. 136; LJ, iii. 411b. On 6 Apr. the committee for the bill to enable pleading the general issue was ordered to meet the following day on his motion, although he was not a member. His interest in legal issues, and his anti-Catholicism, is also illustrated by his objection, on 19 Mar., to the ‘countenance of fines imposed by Chancery’ in the private bill for the recusant peer, Anthony Maria Browne^*, 2nd Viscount Montagu, which he had been named to consider nine days earlier.139 LD 1624 and 1626, p. 34; LJ, iii. 267b. Saye’s concern for the legal implications of the revival of the judicial role of the upper House was demonstrated on 28 May, when he asked whether the Lords could reverse a Chancery decree in response to a petition.140 Add. 40088, f. 144v.

In the aftermath of the session Saye was elevated to the rank of viscount, rendering the question of the precedence of his barony redundant. His advancement seems to have puzzled his contemporaries. Reporting the news on 24 July, John Chamberlain admitted that he could not learn ‘upon what account or for what service’ it had been granted. However, it was undoubtedly an indication that he had become a close ally of Buckingham.141 Chamberlain Letters, ii. 571.

The first Caroline parliaments

In the first Parliament summoned by Charles I, Saye attended the prorogation sitting on 17 May 1625 and 23 of the 31 sittings of the session, 74 per cent of the total. He missed the three final sittings at Westminster and attended only one of the first four sittings after the session reconvened at Oxford at the start of August. However, he subsequently attended every sitting until the prorogation. On 19 July his eldest son James^† (subsequently 2nd Viscount Saye and Sele) was elected for Banbury.142 HP Commons, 1604-29, ii. 320. Saye himself was introduced to the upper House in his new capacity as a viscount on 22 June, by Henry Carey^*, Viscount Rochford (subsequently 1st earl of Dover) and Francis Russell^*, 2nd Lord Russell (subsequently 4th earl of Bedford). Why Russell, a peer of lower status, was chosen when another viscount was present, the courtier Thomas Howard^*, Viscount Andover (subsequently 1st earl of Berkshire), is unknown, but it may reflect Saye’s personal preference.143 Procs. 1625, pp. 39, 40.

Saye was named to nine of the 25 committees established by the House, three of them when he was not recorded as being present in the chamber.144 Ibid. 72, 78, 79. He made four recorded speeches, in the first of which, on 5 July, he conveyed the excuses of Robert Rich^*, 2nd earl of Warwick, Edmund Sheffield^*, 3rd Lord Sheffield (subsequently 1st earl of Mulgrave), Lord Brooke and Oliver St John^*, 1st earl of Bolingbroke. He performed the same service for Brooke again on 4 August.145 Ibid. 89, 135. On 9 Aug. Saye moved for a message to be sent to the Commons suggesting a conference that afternoon concerning a petition proposed by the lower House complaining of pardons granted to Catholics. However, the Commons had already risen.146 Ibid. 171-2. The following day, on Saye’s motion, a committee was appointed to distribute money collected for the poor in London and Westminster.147 Ibid. 174.

According to Bishop Williams, who wrote to the king shortly after the dissolution, Saye supported the tunnage and poundage bill, which was put forward by the Commons. However, Saye was absent when the bill, which only granted the king customs duties for a year, received its first reading in the Lords on 9 July, and the measure never received a second reading, as most peers regarded it as unacceptable, tunnage and poundage was being customarily voted to the monarch for life. Although Williams claimed that Saye was ‘never out my lord duke’s chamber and bosom’, Saye’s support of the tunnage and poundage bill indicates that he was not a reliable ally of Charles and Buckingham in the 1625 Parliament.148 J. Hacket, Scrinia Reserata (1693), ii. 17-18; Procs. 1625, p. 110.

Williams alleged that during the Parliament Saye tried to secure the lord keepership for Sir Thomas Crewe, who had again served as Speaker of the Commons in 1625.149 Hacket, 18. This indicates that Saye supported Buckingham’s efforts to oust the lord keeper. In the event, though, it was Sir Thomas Coventry^* (subsequently 1st Lord Coventry) who succeeded Williams in late 1625.

Saye attended the coronation of Charles I on 2 Feb. 1626, and also the start of the second Caroline Parliament, which opened four days later.150 SP16/20/8. Prior to the meeting, Saye secured the election of his eldest son, James, for Oxfordshire, a sign of his rising influence in his native county.151 HP Commons, 1604-29, ii. 319. He was recorded as attending 73 of the 81 sittings, 90 per cent of the total. Excused on 24 Mar., he nevertheless returned for the next meeting of the upper House four days later.152 Procs. 1626, i. 206.

Saye was absent from the upper House on 11 Feb., when he attended the first day of the York House Conference, staged at Buckingham’s London residence to debate the writings of the anti-Calvinist divine Richard Montagu^* (subsequently bishop of Norwich). The Conference was held at the instance of Warwick and Saye who, alarmed by the rise of Arminianism, were seeking to affirm the Calvinism of the Church of England. It has been suggested that they promised Buckingham their support in the Parliament in return for arranging the debate,153 R. Lockyer, Buckingham, 306. but it is unlikely that Saye would have made such a pledge regardless of the outcome, as he would have only been satisfied by a firm affirmation of Calvinism from the duke. Saye played an active part in the debate on the 11th, attacking Montagu on several points. Just as the meeting was about to break up, Saye successfully prolonged proceedings so that his friend Preston, who had recently arrived, could rebut Montagu’s views on predestination, which Saye described as the ‘chiefest matter’. At the end of the debate Saye joined Secretary of State Sir John Coke^‡ in advocating that the conclusions of the Synod of Dort attacking Arminianism should be formally endorsed by the Church of England, but this proposal was rejected by Buckingham. Saye appears to have adopted a lower profile on the second day of the conference, held six days later, but remained dissatisfied with Montagu’s defence, unlike Buckingham.154 Tyacke, 174-6; J. Cosin, Works, ii. 17, 46-7, 52, 56-7, 59, 63, 69-70, 74. The outcome of the Conference undoubtedly contributed to the growing estrangement between Saye and the duke, and probably coloured much of the former’s activities in the 1626 Parliament. Writing to Buckingham in the early stages of the Parliament, Sir James Bagg^‡ observed that Sir Walter Earle^‡, a prominent Member of the Commons ‘is not so great with any’ as with Saye. He also commented that the duke should ‘know the instruments [who are] your enemies, and [you can] judge whether the principals are your friends’.155 CSP Dom. Addenda 1625-49, p. 113.

Saye made 73 recorded speeches and was appointed to 20 of the 49 committees established by the Lords during the 1626 Parliament. On 9 Feb. he opposed granting privilege to Edward Vaux^*, 4th Lord Vaux, a staunchly Catholic peer. He argued that the purpose of parliamentary privilege was to enable peers to ‘attend the service of the House’, but Vaux had refused to attend, apart from the first days of each session, since the Lords had made swearing the oath of allegiance a condition of taking their seats. Saye concluded, with faultless logic, that ‘he that makes himself uncapable’ of sitting was ‘not capable of the privileges’. He successfully moved to send for Vaux, who finally agreed to take the oath.156 Procs. 1626, i. 40.

Saye himself took the oath of allegiance on 14 Feb., after he had been appointed to the committee and subcommittee for privileges.157 Ibid. 48-9. On 25 Feb. Saye strongly supported the proposal to restrict peers to holding no more than two proxies, a move which threatened Buckingham, who habitually accumulated large numbers of proxies. No doubt thinking of the duke, he argued that there was a danger that ‘the whole House may be enclosed in two or three … with certain pieces of parchment’. He acknowledged that the proposal was an innovation, but ‘not evil’. Speaking again later in the debate he warned against relying on precedent and suggested that it was ‘the greatest wisdom to prevent an inconvenience before we feel the smart of it’.158 Ibid. 71-2. On 9 May, when the Lords debated the orders prohibiting members from speaking more than once on the same matter, Saye secured an order that if any subject required much debate they would go into grand committee.159 Ibid. 388, 391.

On 6 Mar. Saye was appointed to the committee for munitions. By now critical of Buckingham’s handling of England’s defences, on 1 Apr. he supported calls to defend the Newcastle coal trade from the Dunkirk privateers, and suggested that some of the 12 ships which Buckingham had stated were victualled should be employed for that purpose and carry ordnance purchased by the Newcastle merchants. On being informed that all these ships had already been deployed, Saye protested that ‘he thought there had been 30 other ships ready’.160 Ibid. 242.

On 14 Mar. Saye’s son-in-law, Theophilus Clinton^*, 4th earl of Lincoln, raised the question of the earl of Arundel, who had been imprisoned by the king, ostensibly for allowing his heir to marry a kinswoman of the king, but in reality to remove a prominent critic of Buckingham from the upper House. Saye argued that it was a dangerous precedent which ‘may be extended further hereafter’, and was against the privileges of the upper House. He moved for a delegation to be sent to the king, but the Lords agreed only to refer the matter to the subcommittee for privileges. The following day the Lords received a message from Charles insisting that he had not broken their privileges. In response Saye, no doubt unwilling to criticize the king directly, argued that the upper House should not concern itself with the reasons for Arundel’s imprisonment, but focus on ‘the future only’, and called for ‘mediation’ to enable Arundel to resume his seat. He again called for a committee to be sent to the king. However, despite his protests, the Lords suspended proceedings in the case.161 Ibid. 151, 157-9.

When the question of the proxies entrusted to Arundel was raised on 5 Apr., Saye took the opportunity to warn again of the consequence in ‘future times which may otherwise be warranted by this precedent for the commitment of a peer during the Parliament far otherwise than his Majesty now intends’. Once again he renewed his call for a committee to be sent to Charles. On 11 Apr. Arundel was released, but was still denied the right to take his seat. Seven days later, Saye proclaimed the right of peers ‘not to be arrested or detained from hence during Parliament unless for treason, felony or breach of the peace’, and cited precedents, including that of Vaux. Those precedents which had been advanced to the contrary he condemned as ‘no records’, but merely ‘chronicles’. On his motion the question was put for Arundel to be allowed to resume his seat and the Lords agreed to draw up a remonstrance to the king.162 Ibid. 259-60, 282.

Saye was no less strong in his supporter of the right of John Digby^*, 1st earl of Bristol, to sit in the Lords. Bristol, ambassador extraordinary to Madrid in 1623, had fallen out with Charles and Buckingham over the Spanish Match. At the start of the 1626 Parliament he had been denied a writ of summons, prompting him to petition the Lords in complaint. After Bristol’s petition was read, on 22 Mar., it was referred to the committee for privileges on Saye’s motion. Eight day later Buckingham informed the House that Bristol would be sent a writ and instructed to stay away, whereupon Saye moved that only the issuing of the writ should be recorded in the Journal.163 Ibid. 196, 227. On 21 Apr. Coventry delivered a message announcing that the king intended to charge Bristol in the Lords over the earl’s conduct in Spain. This prompted Saye, ‘by a very good speech’, to move for a committee to be sent to the king to give him thanks, to which Saye himself was appointed.164 Ibid. 297-8, 298. Bristol was summoned before the Lords, but eight days later Saye moved that he should be allowed to take his seat as an ordinary member before he was formally charged.165 Ibid. 321-2.

Saye defended Bristol when it emerged, on 2 May, that the earl had preferred charges against Buckingham in the Commons. This act was interpreted by several peers as a calculated insult. As Edward Sackville^*, 4th earl of Dorset, put it, for Bristol to go ‘to the Commons is to accuse us of not [being] competent judges’. Saye, however, declared that he was ‘not satisfied whether our privileges are entrenched on’.166 Ibid. 347. Two days later he argued that the Lords should ‘consider of the cause well before any Lord be proceeded on … for the indictment may leave a blemish on a peer though he be cleared’.167 Ibid. 354.

On 8 May, after the king objected to the Lords’ decision to allow Bristol counsel, Saye supported Pembroke, who argued that the House should first resolve whether the charges against the earl constituted treason. However, he added that, in the meantime, Bristol should be permitted to consult lawyers.168 Ibid. 381. Later that day Saye explicitly defended Bristol’s right to have counsel. The following day he argued that it had not been determined whether the charge against Bristol was in fact treason, a significant point because those charged with treason were not usually allowed legal representation.169 Ibid. 382-3, 392. Saye was appointed to the committee to examine the evidence in the Bristol case on 22 June.170 Ibid. 540.

Saye was one of the Lords appointed, on 8 May, to report from the forthcoming conference at which the Commons presented their impeachment charges against Buckingham.171 Ibid. 380. On 15 May Saye related the charge concerning Buckingham’s administration of medicine to James I in the king’s dying illness.172 Ibid. 457-60, 479. After he had finished, Saye took offence when Buckingham complained that ‘somewhat [had been] added, and somewhat omitted’, and demanded the duke specify what had been left out ‘that it may be rectified’. The duke hastened to state that he had not meant to cast aspersions on the reporters, but Saye was alarmed later that day, when Buckingham moved for the notes taken at the conference to be compared, and inquired of the reason. He presumably feared that the duke was looking for evidence against Sir Dudley Digges^‡ and Sir John Eliot^‡, who had been arrested for delivering inflammatory speeches at the conference. When Buckingham stated that it was in order to show what had been omitted, as Saye himself had demanded, Saye reminded the duke that he had already cleared the reporters. Nevertheless, the House went into committee and Saye and the other lords read out their notes. When the House resumed, Buckingham charged Digges with having criticized James I ‘touching point of government’ and Charles ‘touching the physic’. Saye protested that ‘this may trench upon all our loyalties’ as Buckingham was implying that the Lords had listened to subversion without protest. Saye argued that the Lords had ‘to clear themselves’, and he ‘protested on his honour that he conceived not that Digges had any such intention’ and ‘if he had, he [Saye] would have presently reprehended him’. This prompted most of the other lords present to enter a formal protestation that they had heard nothing that had impugned the king’s honour.173 Ibid. 477, 480-3.

On 16 May Saye and Dorset were instructed to draw up an answer to the Commons, who had asked the Lords to place Buckingham in custody. However, Dorset was a strong supporter of the duke and the two men were unable to agree on a wording. They each drafted an answer, both of which were read, but in the event the Lords agreed not to respond to the lower House’s message.174 Ibid. 490. The following day Saye argued that the clerk of the parliaments was duty bound to enter the full details of the charges against Buckingham, ‘yet if the duke be cleared (as he doubts not) then to be taken away’.175 Ibid. 497.

On 26 May it was reported that, on Saye’s motion, the Lords had administered an oath to all the king’s counsel-at-law, in which they declared that they ‘would be true and faithful to his Majesty, to the intent that none of them might plead for the duke’. There is no evidence that such an oath was taken, or even proposed, although two days earlier the Lords had learned that Buckingham wanted three of the king’s serjeant’s-at-law to represent him, and it had been queried whether this was compatible with the serjeant’s oath not to act as counsel against the king. There is no evidence that Saye spoke in the debate.176 T. Birch, Ct. and Times of Chas. I, i. 105; Procs. 1626, i. 448.

Among Saye’s legislative appointments was an explanatory bill concerning recusancy, which Saye reported as fit to pass without amendment on 13 Mar., though he was not the senior peer on the committee.177 Procs. 1626, i. 127, 143. He spoke in favour of the bill against scandalous ministers at the second reading, on 15 Apr., which he was then instructed to consider.178 Ibid. 268. His other appointments relating to religion included bills concerning the better maintenance of the ministry, the Sabbath, ecclesiastical courts, and the prevention of clergymen from being justices of the peace. He was the first named member of the earls’ bench for the two last measures.179 Ibid. 292, 300, 313, 327, 315, 326. Two other measures which he was appointed to consider that probably interested him from an economic standpoint where the bills concerning the export of wool and dyed and dressed cloth.180 Ibid. 231, 327.

It was reported, on 12 June, that Saye opposed Dorset, who had moved the Lords to press the Commons to pass the subsidy bill. He argued that the king had already sent a message to the lower House for that purpose and that it would breach the privileges of the Commons for the upper House to intervene in matters concerning taxation. Three days later the lord keeper informed the upper House that he had the king’s commission to dissolve the Parliament. Saye was one of the Lords who moved to send a petition to the king to persuade him to reconsider, and he was named to the committee to draft it, but Charles rejected their advice, and Parliament was dissolved.181 HMC 4th Rep. 289-90; Procs. 1626, i. 635. In the aftermath of the Parliament, Saye was one of the lords described by one contemporary commentator as having ‘purchased to themselves an eternal memory, by their well-tempered boldness, and more upright behaviour’.182 Warws. RO, CR136/B108.

In September 1626 Buckingham and his principal enemy at court, the earl of Pembroke, were reconciled. Lord Houghton, by now earl of Clare, feared that a meeting between Saye and Pembroke indicated that Saye supported Pembroke’s rapprochement with Buckingham, but there is no evidence that this was the case.183 Holles Letters (xxxv), 334-5. Saye steadfastly opposed the Forced Loan initiated by Charles I in late 1626, and his example encouraged others in Oxfordshire to refuse.184 Procs. 1626, iv. 348; CSP Dom. 1625-6, p. 485; CSP Dom. 1627-8, p. 25; R. Cust, Forced Loan and Eng. Pols. 289. The assertion that Saye was listed as paying the levy on 18 Nov. appears to be based on a confusion between Saye and William Cecil^*, 2nd earl of Salisbury.185 Cust, Forced Loan and Eng. Pols. 105; E401/1386, rot. 29. Saye subsequently laid low, for on 12 Feb. 1627 Clare reported that, having recovered from a period of illness, he was ‘not to be found’.186 Holles Letters (xxxv), 346. A rumour the following month that he had been summoned before the Council was unfounded, but in June he was once again removed from the Oxfordshire bench.187 Birch, Chas. I, i. 207. In February 1628 Saye was publicly accused of treason by one Stephens, causing him to sue Stephens for scandalum magnatum. In the same month the lord lieutenant of Oxfordshire, Wallingford, now earl of Banbury, blamed Saye for the refusal of the inhabitants of Banbury and the surrounding area to pay the levy he had imposed to fund the billeting of soldiers locally.188 Eng. Reps. ed. A. Wood Renton et al., lxxix. 719; CSP Dom. 1627-8, pp. 589-90.

The 1628-9 Parliament

Saye’s eldest son, James, was re-elected for Oxfordshire to the third Caroline Parliament, which met in 1628.189 HP Commons, 1604-29, ii. 319. Saye himself was appointed a trier of the petitions from Gascony and England’s overseas territories, a largely honorary role, which may nevertheless indicate a willingness by Charles and Buckingham to conciliate their critics.190 Lords Procs. 1628, p. 62. He also assisted in the introduction of new viscounts to the House: Paul Bayning^*, 1st Viscount Bayning, and Edward Conway^*, 1st Viscount Conway, on 20 Mar., and Robert Pierrepont^*, Viscount Newark, on 25 April.191 Ibid. 74, 344. During the 1628 session Saye received the proxy of Richard Robartes^*, 1st Lord Robartes, a Cornish peer with whom he had no known connection, and attended 91 of the 94 sittings of the upper House. (This figure includes the sitting on 10 Apr., when he spoke but was not recorded as present.) In all, he attended 97 per cent of the meetings of the Lords.192 Ibid. 26. He made 103 recorded speeches and was named to 23 of the 52 committees appointed by the upper House.

On 20 Mar. Saye was again named to the committee for privileges and was appointed to the subcommittee the following day. He subsequently checked the Journal nine times.193 Ibid. 73, 78, 79 n. 10, 112 n. 4, 339 n. 4, 364 n. 2, 367 n. 3, 400 n. 5, 461 n. 5, 508 n. 7, 583 n. 8. Following the call of the House on 22 Mar., Saye complained about the precedence granted by the king to the earl of Banbury. Disclaiming any personal animosity, he observed that during the call Banbury had been ‘ranked above six [earls] of a former creation’, in accordance with Banbury’s patent of creation of 28 Aug. 1626. Saye argued that this was contrary to ‘right and usage’ and contravened Henrician statute. At his motion the matter was referred to the committee for privileges.194 Ibid. 89.

When, on 29 Apr., Mandeville, by now earl of Manchester, reported that the privileges committee thought that Lady Purbeck, the estranged wife of Buckingham’s half-brother, John Villiers^*, Viscount Purbeck, should not be granted privilege, Saye stated that he had ‘assented to this particular only’, not ‘to any general q[uestion]’.195 Ibid. 360. Saye’s scruples may explain why the record of the meeting of the committee the previous day gives no indication of how he voted on the question.196 PA, HL/PO/JO/10/1/33 (31 Mar. 1628), no. 12.

Saye was particularly interested in the right of peers to answer on their honour, rather than on oath, in law courts, probably because this right had recently been denied to his son-in-law, Lincoln, in Star Chamber. When the issue was reported from the privileges committee on 6 May, Saye argued that answering on honour had been ‘ever used’ and called on his colleagues to remember the ‘blood that came in your ancestors’.197 Lords Procs. 1628, pp. 383-5. On 16 June Saye protested at the first reading of the subsidy bill that the preamble omitted to mention the Lords. As a result of this oversight ‘we are not by law enjoined to pay money or else we are included to pay our money without our assents’. His motion for a conference was approved.198 Ibid. 647, 650.

On 21 Mar. Saye was named to attend the conference with the Commons about the proposed petition for a fast. After the conference was reported to the Lords later that day, he moved that Members of the Commons, who were waiting in the Painted Chamber, should be informed that the upper House agreed to the petition.199 Ibid. 78, 82. Seven days later the appointment of a committee to distribute the collection for the poor at the fast prompted Saye to move that the lord keeper should give order for the execution of the laws concerning poverty and vagrancy and that the ‘poor may not be suffered to go in troops’.200 Ibid. 115, 117.

On 24 Mar. Saye supported the proposal of Edward Montagu*, 1st Lord Montagu, for a petition to enforce the laws against recusancy, and moved for a conference with the Commons. However, his proposal that this meeting should be held before the petition was drafted was defeated. He was named to the drafting committee.201 Ibid. 97. When the Lords prepared to present the petition, on 29 Mar., it was Saye who reminded them that it needed to be voted by the upper House first.202 Ibid. 124, 724. Saye was as usual named to a number of committees for religious legislation, including measures concerning the Sabbath, preaching and recusancy.203 Ibid. 421, 579, 627.

On 2 Mar. a large part of the Oxfordshire town of Banbury was destroyed by fire. Although it had apparently been started ‘by negligence of a maid’, the fire exacerbated tensions between the local inhabitants and the soldiers billeted there.204 Beesley, 277. On 26 Mar. William Cavendish*, 2nd earl of Devonshire, reported from the committee for petitions, of which Saye was a member, that on the 25th a petition had been received from the constable and other inhabitants of the town complaining that the soldiers had threatened to set fire to the town and committed ‘divers outrages’ against the constable. When the constable complained to the mayor and magistrates, nothing had been done.205 Lords Procs. 1628, p. 103. On hearing this, Saye called for the justices to be summoned and for the soldiers to be removed; according to one report he also said that the soldiers were ‘probably suspected to fire the town’. Buckingham announced that the soldiers would certainly be removed, but called for the petitioners to be punished if their accusations proved to be slanderous. Saye spoke again later in the debate, although sources differ as to whether he had permission to do so. He moved for the constable and two witnesses who had come to Westminster to be sworn. The House agreed, and also summoned the mayor and justices.206 Ibid. 103-5, 107, 108. One of the town’s magistrates subsequently told the House that he had failed to take action against the soldiers because he had been informed he could not do so without the consent of their superior officers. However, he also exonerated the soldiery from any responsibility for the fire; indeed, he said that they had helped to quench it. In response, Saye denied that it had ever been alleged that the soldiers were responsible. Instead, arguing that it had been proven that the soldiers had assaulted the constable, he blamed the mayor and justices for failing in their duty. Unless they were punished ‘it will be conceived that soldiers are … exempted from the law’. The Lords agreed that the soldiers were not above the law, but they decided, as the soldiers had come off worse from the affray with the townsmen, to discharge all parties with admonitions.207 Ibid. 137-43.

On 27 May Saye announced that Henry Reynd, an ensign who had been one of the soldiers involved in the disorders in Banbury, had been responsible for further ‘insolences’ in the town. According to one witness, Reynd had entered a tavern at midnight accompanied by two other soldiers. Armed with a bill taken from a watchman, he had prevented those present from leaving ‘and bid them go and complain to the Parliament House … and to the Lord Saye, for he took their parts highly but he was a base puritanical dog and that he did not care a fart for him’. Reynd also offered to fight Saye’s son.208 Ibid. 642; PA, HL/PO/JO/10/1/35, f. 124r-v. The Lords thereupon summoned Reynd, who promptly went into hiding.209 Lords Procs. 1628, pp. 541, 567. On 9 June the Lords began to pass sentence on Reynd, but stopped when Buckingham informed them that the ensign had been found.210 Ibid. 606, 607. Reynd was again ordered to appear, but again failed to do so, whereupon the upper House ordered that he be dishonourably discharged from the army, imprisoned, made to stand in the pillory in London and Banbury, fined £200 and made to ask forgiveness of Saye and his son. Star Chamber was ordered to execute the sentence if Reynd was apprehended while Parliament was not sitting. Saye, who had withdrawn from the chamber while sentence was passed, returned and ‘gave their lordships humble thanks for the sense they had of his honour’.211 Ibid. 627, 629.

On 7 Apr. Saye was named an assistant to the reporters for the conference which the Commons had requested about the liberties of the subject. The Forced Loan, and the means which had been used to enforce it, especially the imprisonment of prominent refusers by the Privy Council, had led to widespread alarm that the traditional liberties of Englishmen were under threat. Two days later, following the delivery of the conference report, Saye praised the Commons, arguing that they had ‘proceeded with great caution’, and he moved for counsel to be heard for ‘whatsoever may be said for the king’. Saye believed that it was the function of the Lords to hold the balance between the crown and the people. It is therefore likely that he wanted the role of defending the prerogative assigned to the crown’s lawyers, not undertaken by the upper House, which was to mediate between the king and the Commons.212 Ibid. 157, 182, 185; C. H. Firth, ‘Letter from Lord Saye and Sele to Lord Wharton’, EHR, x. 106-7.

It quickly became apparent that Saye’s sympathies lay with the Commons. When, on 12 Apr., Sir Robert Heath^‡, the attorney general, tried to vouch a precedent concerning the crown’s power to imprison without showing cause, Saye interrupted him to ask whether there was any evidence that an application for habeas corpus had been made and denied in the case from which Heath’s precedent derived, thereby casting doubt on its relevance to the question in hand.213 Lords Procs. 1628, p. 213. Later that day Saye moved for a fresh conference to enable the Commons to reply to Heath before the Lords passed judgement. When it was argued that the Lords should consult the judges first, Saye moved that the House turn itself into a committee to debate the matter. This suggestion was opposed by Buckingham, but Essex successfully argued that a resolution of 9 May 1626, reached on Saye’s motion, required the Lords to go into committee if any lord demanded it.214 Ibid. 204, 209. This was an important tactical victory. Williams later recalled that only four or five members of the upper House were initially willing to speak up for the Commons. Had they not been able to use committees of the whole House to keep the issue of the liberties of the subject in debate, they would have been quickly defeated. Saye was particularly important in this regard because he had the eloquence and legal knowledge which some of his allies, like Essex, lacked.215 E.R. Foster, House of Lords 1603-49, p. 116.

In the committee Saye initially pressed for a conference before receiving the opinions of the judges. However, he subsequently argued that the judges of King’s bench, who had failed to grant bail to imprisoned Forced Loan refusers in the Five Knights’ Case, should be first heard. He wanted Heath to reply to the Commons, probably in the hope that this would turn the conference into a debate between the attorney general on the one hand and the Commons on the other, rather than between the two Houses.216 Lords Procs. 1628, p. 205. When, the following day, the lord chief justice, Sir Nicholas Hyde^‡, expressed qualms about delivering the reasons for his court’s judgement in the Five Knights’ case without the king’s permission, Saye affected to ‘wonder much this question should be made’. He accused Hyde of seeking to elevate his court above the upper House, and, speaking again without leave, argued that Hyde’s hesitation ‘trenches upon our privileges’.217 Ibid. 222. On 15 Apr. Saye accused Hyde of making an assault ‘upon the power of this court’. Citing Sir Edward Coke^‡, he described the upper House as ‘supreme’ in any ‘matter of judicature’.218 Ibid. 222, 226, 233. The judges subsequently explained their decision, whereupon Saye called for a conference to enable the Commons to answer precedents the judges had cited before the Lords debated the question.219 Ibid. 232-3.

By 18 Apr. Saye was identified as one of the champions of the liberties of the subject in the upper House.220 Birch, Chas. I, i. 347. Three days later he explicitly endorsed the case made by the Commons against arbitrary arrest and imprisonment, arguing that ‘M[agna] Carta was made to regulate the king’s power’ and ‘that a subject cannot be committed without a cause’.221 Lords Procs. 1628, p. 312. The following day he averred that there was ‘no[t] one precedent directly against this liberty’. He acknowledged the force of the ‘reasons of state’ argument, but asserted that this only concerned emergencies, and that the law should concern itself with normal circumstances and be ‘positive and absolute’. If there was a fire, he suggested, it might be necessary to pull down houses, but should they, he asked, therefore ‘leave the king power to pull down houses, etc., at all times?’222 Ibid. 320.

Speaking later that day, Saye asserted that if the proposals of the Commons were accepted ‘the prerogative [would] be confined, not restrained or debarred’. The trust, which he acknowledged lay with the king, needed to be ‘not … so used as to prejudice the liberty of the subject’. He denied that there would be ‘any inconvenience to the state’ to insist that a legal cause was shown when someone was arrested, because this could be ‘general for treason or felony’. Asserting the ‘ancient constitution’, he claimed that William the Conqueror ‘swore to maintain the ancient right[s] of the land’, and that Magna Carta had only come about because those rights had been infringed.223 Ibid. 323, 327, 329. When Dorset moved that the Council should be the judges of reasons of state, Saye protested that ‘then the party so committed’ was ‘without remedy by the law’.224 Ibid. 324.

Later in the same debate Saye demanded that if the Lords voted against the propositions of the Commons he and his allies should be allowed to ‘give our votes with a protestation and our dissents to be entered’. It was subsequently reported that Saye’s ‘motion daunted them all with a lively sense of their ignominy’.225 Ibid. 324; Birch, Chas. I, i. 349. On 23 Apr. Saye was named to the committee to confer with the Commons, and at the ensuing conference he assured the representatives of the lower House that ‘the Lords had declared yet no judgement either of the prerogative of the king or of the liberty of the subject’.226 Lords Procs. 1628, p. 333; CD 1628, iii. 47.

On 9 May the Petition of Right, formulated by the Commons in protest at illegal taxation and arrests, was read in the Lords. In the ensuing debate Saye welcomed the clear declaration of the illegality of the Forced Loan, arguing that it was necessary to put this on record, ‘otherwise it may be said no exceptions were taken against them, and so they remain for precedents for posterity to be used again’.227 Lords Procs. 1628, p. 401. He was therefore named to the committee to consider the Petition.228 Ibid. 400.

On 12 May the king insisted that he must retain the power to arrest without showing cause, which the Petition had declared illegal. That evening Saye and a number of other lords left the chamber, believing that the House had agreed to adjourn. However, on Buckingham’s motion, the Lords proceeded to debate the king’s letter. Saye cried foul, and joined the protests the following day, particularly angry that ‘an imputation [had] been laid upon them that were absent’. He argued that there had, in fact, been ‘a positive order’ to adjourn, because when ‘the lord keeper asked whether it was your lordships’ pleasure to put off the great business till tomorrow it was not denied’.229 Ibid. 417. The next day, having failed to defer further debate, Saye described both Charles’s letter of the 12th and the monarch’s sovereignty as ‘rocks’. By this he presumably meant that there was a danger that the debate would be shipwrecked if it became a discussion of the king’s prerogative. Rather than concern themselves with the king’s powers, they should instead ‘debate only the subject’s right, for therein the king’s prerogative is not touched’. The Commons had offered to answer any reasons which the Lords might propose ‘why the Petition touching imprisonment should be according to the letter’.230 Ibid. 428-9. Later in the debate Saye argued that Charles’s assurances that the power to imprison would not be misused ‘may be prejudicial to posterity, howsoever it is satisfactory to the present’. He was willing to accept that the ‘cause to be expressed in the commitment’ need not be ‘a legal cause’. Nevertheless, he was keen to ensure that any compromise formula which the Lords offered the Commons would not prevent the upper House from subsequently accepting the Petition as it stood if the compromise was rejected.231 Ibid. 429-30.

On 15 May Saye argued that any explicit recognition of the king’s power to imprison at his discretion would leave the situation worse than it was, as it would weaken all the existing laws safeguarding the liberties of the subject. He pointed out that ‘many gentlemen of the best rank’ had been imprisoned without cause shown, including ‘many here’, among them himself, in 1622. Previously the legality of such arrests had been ambiguous, but ‘this point being insisted on in Parliament’, and ‘it being maintained that the commitments are according to law, if the Parliament give way to it the laws [upholding liberty] are then gone’. It was not enough to make it illegal to imprison for refusing to lend, because no one had been explicitly imprisoned for that purpose.232 Ibid. 439, 441-2.

Two days later Saye praised the Petition, arguing that it was ‘as well drawn as may be’ and that ‘his own heart knows’ that the ‘Petition [is] just’. He complained that the debate had been marred by the ‘naming of the word “prerogative” [which] has done much hurt’. He therefore opposed the insertion of an explicit provision for the prerogative in the Petition, claiming that it ‘may be hurtful to the subject’, whereas the omission of such a provision ‘can do no hurt to the king’s power’. The prerogative would ‘remain there’ even if it was ‘not expressed’ in the Petition. He returned to his distinction between emergencies and the normal state of affairs. Saye accepted that, ‘upon commotion or civil war’, the king should have freedom to act as the situation dictated, but asserted that it would be ‘insufferable that there should be an expression of this liberty in law because by that there might be pretences for abusing this power’. Saye initially conceded that there was ‘perhaps some way fit [of the prerogative] to be expressed’. However, when the chancellor of the exchequer, Richard Weston^*, Lord Weston (later 1st earl of Portland), proposed a general saving clause for the prerogative he opposed it, arguing that ‘if you extend this addition to every particular in the Petition, the Petition is quite overthrown’. The saving would apply not ‘only in important and emergent cases of necessity’ but in all circumstances.233 Ibid. 455, 457.

Saye reiterated his argument on 20 May that, while ‘no danger can be to the king’s prerogative’ if the Petition passed without a saving clause, there was a risk ‘to the liberties of the subject’ if it passed with one. He argued that the Lords should adjourn without voting, and the following day ‘offer our intention not to encroach in the king’s prerogative’. This suggests that he envisaged that the two Houses would jointly present the king with a statement concerning the prerogative, but that this document would not form part of the Petition and therefore not detract from it. His proposal ‘to see what they may do by private friends’ indicates, too, that he thought private channels could be used to put pressure on Members of the Commons to agree, although there is no evidence that it was adopted.234 Ibid. 479, 481, 487. The following day he returned to his argument that an explicit recognition of the prerogative in the Petition ‘may leave us worse than the laws now leave us’. The powers of the king and the liberties of the subject were entirely different, and ‘if there be nothing more than the liberty of the subject [in the Petition], there need no saving of the prerogative’.235 Ibid. 495.

Following a further conference with the Commons on 23 May, Saye argued that the Lords had never disputed the lower House’s contention that the Petition was ‘according to the laws’. He presumably intended to imply that the Petition could not be considered a challenge to the powers of the crown. At this stage he was still prepared to make some provision for the prerogative, but only if it did not affect the Petition, calling for ‘any other way, that will not work upon the Petition and destroy it’.236 Ibid. 512-13.

The next day, in what was probably his most lengthy defence of the Petition, Saye abandoned all lip service to accommodating the prerogative and, instead, boldly defended the rights of the subject. It was ‘the sense of the House to approve of the Petition to be law’, as ‘the sense thereof is in the laws’. He reiterated the arguments which had been put forward by the Commons and declared that he and his allies had never approved of ‘an accommodation [with the Commons] by way of receding from the subject’s right nor the Petition’. He complained that ‘nothing [had been] alleged against’ the rights of the subject ‘but precedents’ whereby ‘the infringement of the laws [had been] alleged for proofs’. He warned his colleagues that it ‘will seem strange to posterity and make us hateful’ if they failed to join with the Commons in the Petition. He would ‘draw a just execration’ on himself if he failed to support the Petition, and therefore wished ‘my name may be recorded amongst those Lords who shall agree to join with the Commons herein for preservation of our just rights’. Saye’s speech included ‘some unpleasing rubs upon the duke’, provoking a protest from Buckingham. However, the two men were reconciled on Essex’s motion, and Saye won the day as the Lords agreed to support the Petition.237 Ibid. 524, 528; Whole Works of the Most Rev. James Ussher, ed. C.R. Elrington, xv. 410. Following the passing of the Petition by the Lords, Saye was one of the lords out of favour who were brought before the king to kiss hands.238 Birch, Chas. I, i. 358-9.

Saye was, unsurprising, highly critical of Roger Manwaring^† (subsequently bishop of St Davids), who had preached in favour of submission to the Loan, for which offence he was charged by the Commons in 1628. On 11 June Saye argued that if Manwaring wanted to ‘submit himself he must acknowledge the charge’, and also presumably his guilt.239 Lords Procs. 1628, p. 621. Two days later Saye launched into a bitter attack on Manwaring, whom he accused of ‘base flattery’. Attributing his faults to ‘a disease of covetousness and ambition’, he said it was necessary for the Lords ‘to purge the kingdom of that disease by some exemplary punishment’ or else ‘you shall have men … prostitute not only their learning but their functions to flattery’. He urged that Manwaring be fined and imprisoned, declared ‘infamous’, dismissed from the Church, ‘degraded’, silenced from preaching, and have the published text of his sermon burned. Much of what he wanted was accepted by the Lords, except that Manwaring was not defrocked but only suspended from the ministry for three years.240 Ibid. 636-7. The following day, Saye moved the Lords to summon the lower House to hear sentence passed on Manwaring, and to apply to the king to have Manwaring’s books called in and burnt. Five days later he was named to the committee for drafting Manwaring’s submission.241 Ibid. 644. 672.

Following the prorogation in June, Saye suffered no reprisals for his stout defence of the Petition. On the contrary, by the end of November, when English politics were being realigned following the assassination of Buckingham, it was rumoured that he would be appointed to the Privy Council. In the event that advancement was denied him, although he was restored to the Oxfordshire bench on 19 December.242 LD 1621, 1625 and 1628, p. 229; Birch, Chas. I, i. 440, 447.

Saye attended the prorogation meeting on 20 October. He was recorded as present at 19 of the 23 sittings of the 1629 session, 83 per cent of the total, but missed the first two sittings (20 and 21 Jan.), during which time he was named to the committee and subcommittee for privileges in his absence.243 LJ, iv. 6a, 6b. He received seven committee appointments (out of a possible 19) and made two recorded speeches.

On 7 Feb. Saye passed on information obtained from Sir Gervase Clifton^‡, a Nottinghamshire baronet, concerning a remark by Lord Keeper Coventry in rebuttal of an accusation made by Francis Leak^*, Lord Deincourt (subsequently 1st earl of Scarsdale), concerning a Chancery case.244 Ibid. 23b. Seven days later, Saye was named to a committee instructed to draft legislation for the upkeep of churches and to improve curates’ stipends, on which occasion he made what Lord Montagu described as ‘a good speech for the necessity of preaching minister[s]’. He regretted the defeat of a bill in the previous session to enable people in parishes without a preaching minister to attend sermons elsewhere, a defeat he attributed to the hostility of the bishops. He argued that the loss of this measure made it necessary for every parish to have a resident preaching minister, whereupon he attacked the evils of non-residence and pluralism.245 Ibid. 31a; HMC Buccleuch, iii. 338.

The Personal Rule and later life, 1629-62

On 2 Mar. 1629 Saye, in addition to attending the upper House, was present at the general court of the East India Company, of which organization he may only recently have become a member. There he spoke in support of the critics of the company’s merchant leadership, calling for a shift in power from the directors of the company to the ordinary investors. It has been suggested that this was revenge for the company’s failure to support other London merchants in their recent refusal to pay unparliamentary customs duties. However, it is also possible that Saye’s support for the reform agenda was genuine, and that he identified his own interests with those of the company’s small investors (there being no evidence that he ever wanted to sit on the board himself). Nevertheless, his involvement in the company’s internal battles seems to have petered out by 1634.246 CSP Col. E.I. 1625-9, pp. 635-7; 1635-9, pp. 264-5, 298-9, 602; R. Brenner, Merchants and Revolution, 273-4.

During the 1630s Saye became interested in colonial ventures in the Americas. A founding member of the Providence Island Company, established in 1630 to colonize an island off the coast of central America,247 CO124/2, f. 1. he was also closely involved in the settlement of New England, particularly the Saybrook colony (later part of Connecticut), which he established in 1635 in conjunction with Robert Greville^*, who succeeded his friend Fulke Greville as (2nd) Lord Brooke in 1628.248 B. Trumbull, Complete History of Connecticut (1818), i. 495-6; Winthrop Pprs. III: 1631-7 ed. Mass. Hist. Soc. (1943), 198-9.

In 1634 Saye and Brooke opened negotiations with the rulers of Massachusetts about the possibility of emigrating. Before embarking on such a step, they wanted to be given assurances concerning the governance of the colony.249 Jnl. of John Winthrop ed. R. S. Dunn, J. Savage, and L. Yeandle, 120. In particular, they sought the establishment of a two chambered legislative assembly with a chamber of ‘gentlemen’, like the English House of Lords, consisting of hereditary members who would be summoned personally, alongside a representative chamber of freeholders. The status of gentlemen would be conferred on Saye and Brooke, plus others ‘of approved sincerity and worth’, with additions being made only by the consent of both houses. There was evidently no intention on the part of Saye and Brooke to restrict the new hereditary order to members of the English nobility, the purpose of which was probably to insert an element of oligarchy into the constitution of Massachusetts rather than simply preserve the status of noble emigrants. However, the Massachusetts governors insisted that all political rights had to be dependent on Church membership. This would give the Church a veto on admittance to the chamber of gentlemen. Saye, however, was adamantly opposed to Church interference in politics, and therefore abandoned any thought of emigrating to Massachusetts.250 T. Hutchinson, Hist. of Massachusetts (1795), i. 433-9; K.O. Kupperman, ‘Definitions of Liberty on the Eve of the Civil War’, HJ, xxxii. 20-1. In 1638 he vowed to emigrate to Providence Island instead, but that colony was never sufficiently firmly established for him to put his promise into action.251 CSP Col. 1574-1660, p. 262.

In October 1636 Saye was again removed from the Oxfordshire bench, almost certainly for failing to pay Ship Money.252 CSP Dom. 1636-7, pp. 121-2, 210. Determined to challenge the unparliamentary levy in the courts Saye, in February 1637, sued the sheriff of Lincolnshire, who had distrained his goods for non-payment, in what was suspected to be a collusive suit.253 Birch, Chas. I, ii. 272, 278, 280; CSP Dom. 1637, p. 155. Saye subsequently changed tactic, attempting to sue the constable who had carried out the distraint. However, in June he faced the threat of a Star Chamber prosecution for enclosing and depopulating part of his estates. It has been suggested that this threat induced Saye to suspend his case concerning Ship Money and that a bargain was struck whereby the legality of Ship Money was tested instead by the prosecution on John Hampden^‡. If such a deal existed, no direct evidence of it has survived. Moreover, following the defeat of Hampden’s challenge, Saye’s own case came to court in the autumn of 1638, though it went no further after his counsel was rebuked by the judges for questioning the ruling in the Hampden case.254 CSP Dom. 1637, pp. 248, 252; N.P. Bard, ‘Ship Money Case and William Fiennes, Visct. Saye and Sele’, BIHR, l. 182-4; Rous Diary ed. M.A. Everett Green (Cam. Soc. lxvi), 85.

Saye, like other members of the nobility, was summoned to York by Charles in January 1639 to fight the Scottish Covenanters. Although he was no presbyterian, Saye undoubtedly sympathized with Scottish opposition to the Prayer Book which Charles had sought to impose upon them. Initially he refused to attend the king, only to relent.255 CSP Dom. 1638-9, p. 516. However, on 18 Apr., having arrived at York, he and Brooke informed George Manners^†, 7th earl of Rutland, that they were only willing to serve Charles in England and would not participate in an invasion of Scotland, which they regarded as beyond their legal duty. They accepted that, as English nobles, they were bound to serve Charles in arms, but only insofar as he was king of England, not king of Scotland.256 HMC Rutland, i. 507.

On 21 Apr. Charles tried to bind to his service the nobles who assembled at York by a newly formulated oath to ‘oppose all seditious rebellions’ to the ‘hazard of my life and fortunes’. However, the oath described Charles as ‘lawful king of this island’, which did not exist as a single political entity; there was no mention of England or Scotland. Given that Saye and Brooke had already recognized the significance of the distinction between the two kingdoms, it is unsurprising that they refused to swear the oath.257 Lismore Pprs. (ser. 2) ed. A.B. Grosart, iv. 21-2. Saye sought to excuse himself on the grounds that the oath was not legal. Challenged by an irate king, he acknowledged his duty to defend Charles ‘to his best power, in case he or his kingdom should be invaded’ but ‘he could not serve him in quality of a peer out of this kingdom’. Charles tried to get round these objections by offering Saye a command in his army. In that way, Saye would be serving as a soldier rather than as a noble. However, with his duty no longer in question, Saye declined, stating that it was against his conscience. Saye and Brooke were then imprisoned.258 Ibid. 19-20; HMC Rutland, i. 507-8; CSP Dom. 1639, p. 67.

Questioned subsequently, Saye denied that he had any duty to serve the king outside England, unless the country was invaded. He claimed ignorance of the actions of the Scottish Covenanters, but was willing to concede that they might constitute treason in English law. He did not know what constituted treason in Scottish law.259 HMC 4th Rep. 23. A no doubt exasperated Charles responded that he thought it unfit at this time for Saye and Brooke ‘to make question one way or other of their privileges’. Instead, he commanded them ‘positively [to] answer’ whether they would serve him, and also whether they believed the Covenanters ‘are justly to be called rebels’. On the last point they were ‘not to plead ignorance’ as his own ‘proclamations and declarations’ had given them all the information they needed.260 SP14/418/114. Saye’s responses to these questions have not survived, but were no doubt carefully framed. Certainly Secretary of State Sir Francis Windebank^‡ thought that ‘their [Saye and Brooke’s] answers are very cunning and Jesuitical’.261 State Papers collected by Edward Earl of Clarendon ed. R. Scrope (1767), ii. 41.

Saye and Brooke were released on 25 Apr., but confined to their country residences. King’s counsel were ordered to comb through their answers for grounds to prosecute them, but they returned a disappointing answer. In May Charles thought that it might be possible to proceed against them for failing to bring sufficient arms and retinue to York, but earlier reports had indicated that they had brought the necessary equipage with them. Indeed, they had been asked to leave behind some of their horses.262 Lismore Pprs. (ser. 2), iv. 23; State Papers collected by Edward Earl of Clarendon, ii. 40-1, 45; HMC Buccleuch, iii. 381; HMC Rutland, i. 509, M.L. Schwarz, ‘Visct. Saye and Sele, Lord Brooke and Aristocratic Protest to the First Bishops’ War’, Canadian Jnl. of Hist. vii. 34.

Saye was one of the most prominent supporters of Parliament in the Lords during the Civil War. However, he opposed the regicide and refused to have anything to do with either the Commonwealth or Protectorate, despite being summoned to Cromwell’s ‘Other House’ in 1657. He was appointed to the Privy Council at the Restoration and, having died quietly in his bed in April 1662, was buried, in accordance with his wishes, in Boughton church, where a costly monument was constructed. His will, dated 3 Mar. 1660, is largely concerned with the disposing of money which Preston had entrusted to him for the upkeep of poor scholars at Emmanuel College Cambridge. He named as his executor his eldest son, James, who succeeded as 2nd Viscount Saye and Sele, and proved the will on 19 Nov. 1662.263 Oxford DNB online sub Fiennes, William, 1st Visct. Saye and Sele (Jan. 2008); Ath. Ox. iii. 550; PROB 11/309, ff. 314v-15.