LEY, James (c.1552-1629)

Although contemporaries and many historians have regarded Ley as an ineffective lord treasurer – his detractors referred to him as Volpone – he had been a conscientious lawyer and judge, and was generally perceived as ‘a person of great gravity, ability and integrity’.65T. Fuller, Worthies of Eng. iii. 328. At the time of his appointment as lord treasurer in 1624 he was in his early seventies, and not surprisingly therefore several commentators saw him as a stop-gap, whose chief asset – in contrast to his predecessor Lionel Cranfield^*, 1st earl of Middlesex – was probably his lack of curiosity about the lucrative perquisites enjoyed by his patron George Villiers^*, 1st duke of Buckingham, and the latter’s kindred. However, his mental faculties were by no means dimmed by age, and while intermittently hobbled by poor health, he handled an unfamiliar brief at the Exchequer with competence, even if he lacked Middlesex’s flair.66 Autobiog. of Sir Simonds D’Ewes ed. J.O. Halliwell, i. 160; Chamberlain Letters ed. N.E. McClure, ii. 338; C115/107/8536.

Earlier career, 1552-1624

A younger son, Ley made his career as a lawyer. In the early years of James I’s reign he served as a judge in south Wales and Ireland, returning to England to take up a lucrative post as attorney general of the Court of Wards. He invested the profits in substantial land purchases in the vicinity of the family home at Teffont Evias, Wiltshire, and was returned for the nearby constituency of Westbury three times, and Bath once.67 CSP Dom. 1603-10, p. 74; CSP Ire. 1603-6, p. 114; Wilts. RO, 967/14; VCH Wilts. vii. 185. In 1617 he was rumoured to have offered £10,000 for the post of attorney general, but the position went instead to Sir Henry Yelverton^‡. However, in January 1621 he succeeded Henry Montagu^*, Viscount Mandeville (later 1st earl of Manchester) as chief justice of King’s Bench, following the latter’s appointment as lord treasurer, whereupon he was forced to relinquish his seat in the House of Commons. Summoned to the Lords as a legal assistant, he was included on many of the most important committees as an adviser, while in March, on the suspension from Parliament of Lord Chancellor Francis Bacon^*, Viscount St Alban, he took the woolsack ex officio, as Speaker of the House of Lords.68 CSP Dom. 1619-23, p. 64; Chamberlain Letters, ii. 338.

Although he chaired the Lords’ debates for almost three months, Ley, not being a peer himself, generally confined his interventions to procedural matters. On 17 Apr., when the Lords pondered how to compel the attendance of Sir Henry Yelverton, then held in the Tower, Ley moved to send a ‘special warrant’, by which he perhaps meant one which would not be allowed to form a precedent for infringing royal authority. A week later, at the end of a long debate about whether Bacon’s general confession to the charges against him was sufficient as an admission of guilt, Ley intervened to put the question whether Bacon should be ordered to answer the charges in writing or in person; but when the chancellor addressed his response to Ley alone, the House refused to allow the letter to be read.69 LD 1621, pp. 3, 17-18; LJ, iii. 87a-b. On 7 May Ley reported a conference about the judges’ ruling that the Commons could not claim sole jurisdiction over Edward Floyd, who had slandered Princess Elizabeth and her husband.70 LD 1621, p. 68. He played a more active role on two occasions: on 24 Apr. he moved for Prince Charles to be allowed to attend all committees, whether or not he were specifically nominated; and on 26 Apr., when the monopolist Matthias Fowles was examined about his gold and silver thread patent, Ley demanded to know whether he was aware of the deceits practised by his workmen.71 Add. 40085, f. 35v; LD 1621, pp. 27-8, 31-2.

Ley owed his position as chief justice to Buckingham, and, with the favourite’s backing, he was a serious contender to succeed Bacon as chancellor. The king ultimately appointed John Williams^* (newly created bishop of Lincoln), but Ley cemented his position with Buckingham in July 1621, taking the latter’s niece as his third wife; the wide disparity in their ages led the wits to quip, ‘seventy had married seventeen’.72 Chamberlain Letters, ii. 381, 387; J. Hacket, Scrinia Reserata (1693), i. 51; Add. 72299, f. 48; Autobiog. of Sir Simonds D’Ewes, i. 160-1; R. Lockyer, Buckingham, 41. In Parliament in 1624, Williams chaired the Lords, but Ley once again served as a legal assistant, and on 10 Mar. it was in this capacity that he reported the bill to secure hospitals against the depredations of patentees for defective titles should be redrafted.73 Add. 40087, f. 67.

The impeachment of Lord Treasurer Middlesex created several vacancies at a senior level. With the chancellor of the Exchequer, Richard Weston^* (later 1st earl of Portland), tipped for the treasurership, Ley initially aimed for the other key vacancy, the mastership of the Court of Wards. However, he ultimately secured the treasurer’s staff in December, presumably after a long debate between Buckingham and the king over the merits of the rival candidates. The disgraced lord treasurer received nothing from his successor, of course, but Ley is said to have paid £15,000, both for the office and a barony – most of this sum presumably went to Buckingham.74 Add. 72276, ff. 105v, 125v, 131; Stuart Dynastic Policy and Religious Pols. 1621-5 ed. M.C. Questier (Cam. Soc. 5th ser. xxxiv), 305; C115/107/8536; Add. 72299, f. 139; NLW, 9060E/1267; HMC 4th Rep. 290.

Exchequer and Parliament, 1625-6

While the 1624 Parliament had voted substantial sums towards a war with Spain, the peacetime budget remained in deficit and, like his predecessors, Ley was soon informing the crown’s creditors that he was unable to meet their demands. In April 1625, he gloomily advised the new king, Charles I, that he had inherited debts of £1,000,000, and that two-thirds of the revenue for the coming year was already spent anticipation, whereupon it was unanimously agreed that payment of all pensions would cease for a year.75 Stuart Dynastic Policy and Religious Pols. 1621-5, p. 358; APC, 1625-6, p. 28; CSP Ven. 1625-6, p. 12; Procs. 1625, pp. 705-6. Ley also revived the 1622 imposition of 20s. per tun on wine, which had been suspended following Middlesex’s fall. This provoked near-universal resistance in London, and widespread evasion in the outports. However, he dragged his feet over repayment of recusancy fines, which had been promised to the French in the recently signed marriage treaty.76 AO1/736/521, 523; AO1/738/543; Stuart Dynastic Policy and Religious Pols. 1621-5, p. 364; CSP Ven. 1625-6, pp.51-2. The best hope for fresh revenue came from Parliament, which was summoned within days of Charles’s accession. Ley was not a major parliamentary patron: he interceded with two Wiltshire magnates, Philip Herbert^*, earl of Montgomery (later 4th earl of Pembroke) and William Seymour^*, 2nd earl of Hertford, to secure the return of his son Henry Ley^* (later 2nd earl of Marlborough) as a knight of the shire; and had his son-in-law, Walter Long I^‡, returned for Westbury; but his recommendation of Emmanuel Giffard^‡ at Rye was rejected.77 HP Commons 1604-29, ii. 430-1, 452-3, 533; Procs. 1625, pp. 696-7.

Introduced into the Lords as a peer on 22 June by Edmund Sheffield^*, 3rd Lord Sheffield (later 1st earl of Mulgrave) and Theophilus Howard^*, Lord Howard de Walden (later 2nd earl of Suffolk),78 Procs. 1625, pp. 39, 41. Ley was one of only two lawyer-members of the House, the other being Mandeville who, like him, acquired his title ex officio. Ley’s office, which kept him in the Lords for almost every sitting of the brief session, had a well-defined departmental role, scrutinizing a range of legislation relating to the crown’s finances. On 28 June he reported from two bill committees: one to confirm copyhold leases on the duchy of Cornwall manor of Cheltenham, Gloucestershire; and another to ensure duchy leases did not terminate on the death of the incumbent prince.79 Ibid. 52, 58, 64, 67. He was also named to a committee to allow duchy of Cornwall copyholders in Macclesfield, Cheshire to buy out their freeholds, another to confirm the endowments of hospitals against defective title proceedings, and a third measure ‘for the better preservation of his Majesty’s revenue’; while on 6 July either he or Lord President Mandeville reported the bill to streamline procedures for securing licences of alienation.80 Ibid. 88, 95, 97, 127. He had some involvement in other business, reporting the conference with the Commons about arrangements for a fast day, being appointed to attend a conference about enforcement of the recusancy laws, and being included on the committee for the recusancy bill.81 Ibid. 67, 69, 146, 174.

The urgent business for which the 1625 Parliament had been summoned was the provision of funds to finish equipping the fleet then preparing to launch the long-delayed war against Spain. On 30 June, the Commons pre-empted any official initiative with a meagre grant of two subsidies, which was reluctantly accepted; Ley was included on the committee for the short bill which allowed the session to continue after the subsidy bill received the Royal Assent.82 C. Russell, PEP, 225-6; Procs. 1625, pp. 105-6. On 8 July, Secretary Sir John Coke^‡ failed to persuade the Commons to consider a further vote of supply, whereupon the session was adjourned to Oxford. The case for additional supply was reiterated by Coke on 4 Aug., in the king’s presence, at a meeting of both Houses. The fact that Ley did not make this speech himself suggests a degree of doubt, either about his health or his financial expertise. However, four days later Ley presented a detailed statement of the crown’s finances at a conference of both Houses. This was divided into three parts: first a recitation of King James’s debts, including loans, the arrears of the royal household, anticipation of customs rents and preparations for the fleet; secondly, present costs, including Charles’s debts as prince of Wales, subsidies to the kings of Denmark and Bohemia, funeral and wedding expenses, and the wage bill for the fleet and army; finally, future costs, including fresh anticipations of customs revenues, monthly subsidies of over £60,000 to Count Mansfeld, the Danes, the Dutch and the Irish army, and £37,000 a year to Queen Henrietta Maria. Despite some vagueness about the figures – many of his papers had been left in plague-stricken London – Ley painted a plausible picture of ‘revenues all wasted and anticipated’, as Sir John Eliot^‡ unkindly recalled. His failure to sway the Commons, and the resultant dissolution four days later, was presumably due to the fact that many MPs noticed the glaring omission in his speech: there was no mention of the queen’s dowry, the first half of which (£120,000) arrived at the Exchequer only a few weeks later.83 Russell, 235-7, 241-9; Proc. 1625, pp.166-8, 171, 431-3, 561, 713-14.

Ley was involved in the administration of the privy seal loans rated during the autumn of 1625, although he was said to have remarked that this would yield ‘full prisons, yet empty coffers’; he also searched for a new syndicate to run the great farm of the customs, the existing arrangements having collapsed under the disruptions of war, and was ordered to consider how to raise additional sums from other farmers.84 Harl. 1580, f. 345; APC, 1625-6, pp. 280, 351, 446-7; Procs. 1626, iv. 345.Shortly after the coronation, on7 Feb. 1626,85 C231/4, f. 195. The date given by CP (5 Feb.) is incorrect. he was elevated to the earldom of Marlborough, a Wiltshire borough, but not one with which he had any obvious connection. There was an alarm about his health when he collapsed just before the opening of the 1626 Parliament, and he did not take his seat in the Lords until 28 Feb., though he held the proxy of John Paulet^*, Lord St John of Basing (later 5th marquess of Winchester) and hardly missed a day’s sitting following his recovery.86 Kent Hist. and Lib. Cent. U269/1/E111 (Catchmay to Cranfield, 7 Feb. 1626). At the general election, his son was returned for Devizes and Walter Long at Westbury; while Thomas Paramour^‡, one of his secretaries, was returned for Lyme Regis, Dorset on the interest of the treasurer’s brother-in-law, Sir John Drake^‡. Robert Long^‡, another of his secretaries, replaced Henry Ley at Devizes when the latter was summoned to the Lords on 2 March.87 HP Commons 1604-29, ii. 114, 438, 453.

On 15 Feb., while Marlborough lay sick, the London merchant Robert Bateman^‡ complained to the Commons about the arrest of a wine merchant, Charles Atye, for refusing to pay the 20s per tun wine imposition revived a year earlier. Some Members then proceeded to make the broader case that impositions were a general grievance, but it was resolved to petition to the king about this specific duty alone, and it was presently suppressed.88 Procs. 1626, ii. 49-51, 63-4, 73-9; Kent Hist. and Lib. Cent. U269/1/CB139 (Lowe to Cranfield, 9 Mar. 1626). AO1/738/543, the final account for the outports during this year, shows widespread evasion of this duty. Another item of former Exchequer business resurfaced on 14 Mar., when John Holles^*, 1st earl of Clare, reminded the House of an order it had issued on 29 May 1624 for Sir Thomas Monson^‡ to receive £2,000 in lieu of sums promised him by the disgraced Lord Treasurer Middlesex. Marlborough insisted it was ‘not fit for the king to recompense him for a promise made by his officer, the treasurer, upon a bargain’, and Monson was left to sue for his money in Chancery.89 Procs. 1626, i. 150; LJ, iii. 421b; M. Prestwich, Cranfield, 397-9.

Much of Marlborough’s activity in the Lords involved oversight of routine Exchequer interests. In his absence, on 11 Feb., he had been named to the committee for the revived bill ‘for the better preserving of his Majesty’s revenue’, while shortly after his return he was included on another committee investigating schemes for coastal defence, an important issue over the winter, as Dunkirk privateers harried the east coast. This latter committee received an offer to import gunpowder to make up a shortfall in domestic production: on 24 Mar. Marlborough reported that this would save money, even if the merchants were allowed a reasonable profit of 10 per cent; but the deal collapsed when the consortium demanded cash up front. The treasurer was also named to a committee for a bill to regulate the contentious activities of the saltpetremen.90 Procs. 1626, i. 43, 110, 197, 207-10, 287-8, 319. He was subsequently named to two other committees for bills with revenue implications, one to promote the export of dyed and dressed cloth and another for confirmation of the conversion of copyhold tenures into freeholds on the crown lordship of Bromfield and Yale, Denbighshire.91 Ibid. 327. Marlborough did not repeat his 1625 speech detailing the crown’s financial position. Instead, Chancellor Weston delivered a statement to the Commons on 27 Mar., thus burnishing his claim to be his superior’s likely successor.92 Ibid. ii. 379; Russell, 282-4, 295-6; HP Commons 1604-29, vi. 726-7.

The 1626 Parliament was dominated by the hostilities between Buckingham and his rivals at court, in which Marlborough, as one of the duke’s clients, became heavily involved. The first clash came on 6 Mar., when the king ordered the arrest of one of the favourite’s chief critics, Thomas Howard^*, 21st (or 14th) earl of Arundel. Pressed for an explanation, Charles insisted on 14 Mar. that the earl had not been arrested for ‘matters of Parliament’; on the following morning Marlborough was required to admit that this message, which purported to come from the king himself, had actually been drafted by the Privy Council – but sought to excuse this sleight of hand by adding that the king had since vouched for it. He was later added to the subcommittee dealing with Arundel’s arrest, which proceeded with conspicuous caution for fear of offending the king.93 Procs. 1626, i. 156-9, 257. On 19 Apr., another of the favourite’s enemies, John Digby^*, 1st earl of Bristol, petitioned the Lords for the writ of summons which had been denied him at the start of the Parliament, while on the same day, his allies in the Commons delivered charges against Buckingham. Marlborough was one of the delegation sent to petition the king about the absence of both Bristol and Arundel. Charles responded by outlining his own charges against Bristol, whereupon the treasurer reported that the privileges’ committee thought it fit to commit Bristol, pending a hearing of the king’s allegations.94 Ibid. 284-7, 296-8; Russell, 302.

Conveniently for Buckingham, this decision denied Bristol access to the Lords while his charges against the duke were under debate. On 29 Apr. his allies therefore moved that he be allowed to take his seat, but Marlborough insisted that ‘if you discharge him out of custody, you disavow your own order’. This failed to sway the House, but at the end of the debate Marlborough managed to delay Bristol’s appearance for two days. When brought to the bar on 1 May, Bristol demanded to be allowed to testify against the duke, but on the following morning James Hay^*, 1st earl of Carlisle, diverted the debate by asking whether Bristol should have been allowed to deliver charges to both Lords and Commons simultaneously. Buckingham’s allies attempted to use this procedural point to discredit Bristol, but on the following day Marlborough raised an important procedural point about the king’s charges against Bristol: according to an act of 35 Henry VIII, treason charges were to be laid in King’s Bench. He was supported by the other lawyers in the House, Lord President Mandeville (now earl of Manchester) and Lord Keeper Sir Thomas Coventry^* (later 1st Lord Coventry). Attorney General Sir Robert Heath^‡ was therefore ordered to draft a fresh set of charges for submission to the judges in Westminster Hall.95 Procs. 1626, i. 322-3; 334 note 34, 346-8.

Both Buckingham and his enemies quickly realized the perils of relinquishing control of Bristol’s case to the judges, though, and on 4 May, the Lords revisited their earlier decision, whereupon Marlborough moved to hear the draft charges before deciding whether they constituted treason. Clare moved that Bristol be allowed to answer the draft charges before the House proceeded to indictment, but the treasurer retorted that this meant witnesses would have to be examined prior to any decision to indict Bristol. Having taken legal advice, the House resolved to hear the heads of the king’s charges against Bristol on 6 May.96 Ibid. 354-5; H. Elsyng, Judicature in Parl. ed. E.R. Foster, 34. Thereafter, on 8 May, Bristol asked that Secretary of State Lord Conway (Edward Conway^*, later 1st Viscount Conway), should not be allowed to use his official position in his testimony against Bristol. Marlborough, among others, was mystified by this point, and the earl was asked to explain himself. Bristol also asked to be allowed counsel, which was normally denied in treason trials, but had been allowed by the Lords’ order of 28 May 1624. Marlborough came down firmly against allowing counsel to the accused, even during the pre-indictment hearings.97 Procs. 1626, i. 382-3. For the 1624 order, see LJ, iii. 418a. The main question Bristol had raised, whether the king was eligible to testify against him, was debated the following day, when Marlborough, among others, moved to ask the judges for an opinion. This was agreed, but Charles then pre-empted their deliberations by ordering them not to make any ruling.98 Procs. 1626, i. 392, 407.

While the Lords debated Bristol, the Commons assembled their case against Buckingham, which was presented to the Lords on 8 and 10 May. On 11 May, Charles came to the Lords, flanked by Coventry and Marlborough, and announced that he had arrested Sir John Eliot and Sir Dudley Digges^‡ for slandering him in their delivery of the charges. Buckingham’s enemies professed to be outraged at the notion that they themselves had overlooked such an offence, and urged every member to affirm that the words imputed to the two MPs had not been spoken. However, Marlborough attempted to discourage the Lords from adopting a course that would cause the king public discredit. Instead, he urged that the offending words be written down and consulted only if the king attempted to prosecute the two MPs. When, on the afternoon of 15 May, a large number of peers entered formal protestations of the innocence of Eliot and Digges, the treasurer was conspicuously absent.99 Russell, 304-7; Procs. 1626, i. 398, 482, 484.

On the following day, the Lords debated the Commons’ request that Buckingham be detained pending his trial, as Bristol had been. Naturally the duke’s allies rallied to his support, led by Marlborough. Buckingham then asked that he might be allowed to address the ‘aggravations’ in the charges against him, by which was meant, as Marlborough explained, ‘inferences used at the examination or trial of the cause’. The lord treasurer added that precedents suggested these should not be addressed, or at least not until the cross-examinations; but it was left to the duke to decide whether to debate the ‘aggravations’ in his answer.100 Procs. 1626, i. 488, 496-7. Buckingham delivered his response to the charges on 8 June, whereupon the Commons asked for a copy of the text. Two days later, Marlborough reported that the privileges’ committee agreed this request should be allowed, but that MPs should also send up their evidence and witness lists.101 Ibid. 602, 604, 606. The case proceeded no further, because the king decided to end the session, and while Marlborough was included on the committee which drafted a last-minute petition to avert this fate, the dissolution took place on 15 June.102 Ibid. 633-5.

‘New counsels’, 1626-8

Having forfeited a parliamentary grant of over £300,000 towards his next campaign against Spain, Charles vigorously set about raising money by other means. Marlborough was clearly not central to these plans – there were rumours of his removal as treasurer – but he was included on the commission for revenue reform which first met on 11 July, and despite health problems, he became an active participant in its debates, assisted by Weston.103 NLW, 9061E/1418, 1422; C66/2390/14. Under royal instructions to deal with the most important disbursements first, Marlborough and Weston imposed a moratorium on the payment of pensions, and demanded detailed accounts of household expenditure. When pressed for payment of courtiers’ wages before that year’s summer progress, they stalled until the king was persuaded to quash this appeal. Marlborough also capped expenditure by the Office of Works at £800 a year, upheld Lord Treasurer Middlesex’s ban on the payment of Irish pensions by the English Exchequer, became adept at refusing payment of pensions to English courtiers, investigated contracts with purveyors, and audited the accounts of the defunct receivership of purveyance compositions.104 Univ. London, Goldsmiths’ ms 195/1, ff. 3v, 12v, 15r-v, 17, 23v-4, 26v, 35v, 45; 195/2, ff. 11, 12v, 18v; Birch, Ct. and Times Chas. I, i.253; CSP Ven. 1625-6, p. 499. The commission scrutinized many revenue-raising projects, including several relating to the court of Wards. Marlborough favoured a scheme put forward by Buckingham’s client Sir Miles Fleetwood^‡ to compound for respite of homage, but opposed another scheme promoted by John Savile^*, 1st Lord Savile, to allow smallholders to compound for their tenures in capite, on the grounds that it sacrificed future revenue in return for a current windfall. These issues were debated before the king in January 1627, when the treasurer demonstrated an impressive ability to recall the details of obscure cases he had handled as attorney of the court of Wards.105 Univ. London, Goldsmiths’ ms 195/1, ff. 21v, 27, 33r-v, 38, 45v-8. Marlborough also paid particular attention to schemes for raising revenues from tobacco imports, tin exports, and the sale of timber from crown forests.106 Ibid. ff. 11, 15v, 18-19v, 20v-2v, 36v-7, 44v, 47; 195/2, ff. 3v, 6-8v, 9v, 17, 32v-4v, 57. It quickly became clear that none of these projects offered the immediate returns required to fund the war, and in November 1626 Marlborough was included on a separate commission to sell crown lands, which realized £283,000 over the next two years, plus an additional £125,000 from the City of London.107 Cheshire Archives, DCH/X/15/5, ff. 2v, 5; E401/1913-14, 401/2443-4; C66/2385/10, 16.

While Marlborough played an active role in the reform of crown finances, he was less conspicuous in the collection of the crown’s most contentious new revenue, the Forced Loan. Part of this may have been due to a lack of forcefulness: the earl of Clare and others who had given the treasurer a direct refusal were less outspoken when confronted by Buckingham. Marlborough may also have been worried about his personal safety, following three visits from unpaid troops demanding their arrears, which caused his house to be placed under permanent guard.108 Holles Letters ed. P.R. Seddon (Thoroton Soc. xxxv), 340-1, 343-4; HMC Hastings, ii. 70; CSP Ven. 1625-6, p. 468; 1626-8, pp. 55, 119; Lords Procs. 1628, p. 314. Yet the treasurer also seems to have harboured misgivings about the legality of the Loan: at the end of October 1626, when the judges, having paid their quotas, refused to affirm the legality of the scheme, Coventry and Marlborough were said to have advised an angry king ‘to have patience, and not to urge them [the judges] to that which they held contrary to law and against their oath, nor yet to enforce them to deliver their reasons of their refusal’. Clare, having clearly heard reports of this exchange, inferred that it had brought the two men to ‘totter in their places’, but both remained in office. In March 1627, when the king rashly insisted that Loan refusers who declined to be pressed to serve in the wars should be hanged under martial law, Coventry explained that ‘none were liable to martial law but martial men’, and appealed for support to Marlborough and Manchester who, taken aback, responded ‘faintly, as unwilling to have been urged to such an answer’. However, Marlborough continued to insist on observation of the legal proprieties: in April he and the Exchequer barons ruled against distraint of goods for payment of Loan arrears; and in December Clare still believed him to be under a cloud.109 Birch, i. 164, 208; Holles Letters (Thoroton Soc. xxxv), 337, 346, 374; Procs. 1628, p. 110; R. Cust, Forced Loan, 55-60.

Marlborough had no such qualms about wringing more out of the customs farmers. In July 1627 he and Weston commissioned auditor Sir Edmund Sawyer^‡ to prepare revised books of rates, one of which proposed to increase annual customs yields by £50,000, the other by £100,000.110 CSP Dom. 1627-8, pp. 256-7; CD 1628, iii. 448, 455-6; iv. 392-3, 395-9; HP Commons 1604-29, vi. 240. These were never put into effect, but the petty farmers were persuaded to give a fine of £12,000 and a loan of £20,000 to secure an extension of their current lease by one year, while the Privy Council ordered the collection of all duties imposed by King James. Marlborough and Weston issued a warrant allowing wines to be imported in foreign ships, which was probably intended to put pressure on English merchants to pay the 20s. per tun duty they had boycotted since the previous year.111 APC, 1627-8, pp. 24-8, 84-5, 118-23; CD 1628, ii. 183-4. By February 1628 the Exchequer, desperate for funds, ordered the sale of 150 tuns of wine seized from merchants who had refused this duty, and when there were no takers, several merchants and wharfingers were imprisoned, and the London Vintners’ Company was bullied into taking these wines off the crown’s hands.112 APC, 1627-8, pp. 246, 278, 302; GL, CLC/L/VA/B/001/MS15201/002, p. 448. The most controversial measure of all was the commission issued to Marlborough and others on 29 Feb. 1628, authorizing the raising of money ‘by impositions or otherwise … wherein form and circumstances must be dispensed with rather than the substance be lost or hazarded’. Its execution was pre-empted by the 1628 Parliament, which met before it could be put into effect.113 CD 1628, iv. 241-2; Birch, i. 327.

The parliamentary session of 1628

The treasurer played a dual role in the 1628 session: in the Lords, he looked after the crown’s financial interests; while in the Commons, he and his subordinates came under repeated attack for what MPs considered to be inappropriate revenue initiatives. Most of these complaints occurred during the first and last three weeks of the session, when Marlborough was absent from the Lords; whether the attacks prompted his indisposition, or vice versa, is impossible to say. His electoral patronage followed the same lines it had in 1626: his secretaries Long and Paramour were returned for Devizes and Lyme Regis, while he brought his brother-in-law Maximilian Petty in for Westbury.114 HP Commons 1604-29, ii. 114, 438, 453.

On 21 Mar., when the Lords were naming their privileges’ committee, it was moved that absentees should not be included: Francis Russell^*, 4th earl of Bedford urged that the treasurer, who was absent, should be included ex officio, but was ignored. Marlborough was nevertheless included on two bill committees in his absence, one to preserve crown revenues, the other the apparel bill.115 Lords Procs. 1628, pp. 78-81, 103, 118. He also missed the debate on the claim by William Knollys^*, created earl of Banbury in August 1626, to enjoy precedence over Marlborough and the other earls created at Charles’s coronation six months earlier. Buckingham undertook to solicit Marlborough’s views, reporting on 9 Apr. that the treasurer was content to yield Banbury precedence for his lifetime only, as the latter’s patent specified.116 Ibid. 128, 158, 160-1, 180, 183.

Marlborough first appeared in the Lords on 3 Apr., when he agreed with Buckingham that a bill for ‘increase of trade’ was excessively hostile to Dutch interests: ‘no small matter to alter a trade with a nation or friend of ours’. On 7 Apr., the king’s answer to the Commons’ petition for enforcement of the recusancy laws promised that Marlborough would presently be instructed to exact the full penalties imposed on Catholics by the law. This undertaking was never honoured, as the Exchequer mechanism for levying statutory fines was then being superseded by a composition scheme.117 Ibid. 148; CD 1628, ii. 326.

Meanwhile, in the Commons, Exchequer officials were coming under sustained attack for their high-handed enforcement of contentious customs duties. On 22 Mar., Marmaduke Rawdon^‡ tabled a petition from the London wine merchants about the recent arrest of several their number for refusing to pay the 20s per tun impost. Several MPs recalled that this duty had been condemned at the impeachment of Lord Treasurer Middlesex in 1624, and it also emerged that one of Marlborough’s servants had a share of the current patent for its collection. On 31 Mar. the Commons resolved to petition the king to rescind this duty, and on 11 Apr. Charles responded that he had summoned Marlborough and Weston to discuss the levy.118 CD 1628, ii. 54-5, 125-7, 136, 138-9, 144-5, 152-3, 177, 181, 211, 216, 219, 411, 420. Meanwhile, on 7 Apr., Henry Waller^‡ submitted another petition from the Levant merchants, who complained about a duty of 2s. 2d. per hundredweight on currants. The patent for its collection was held by the earl of Arundel, who had sublet his interest to Lord President Manchester. On 11 Apr. Charles promised to discuss this, too, with his Exchequer officials. Five weeks later, it was reported that Marlborough and Weston denied receiving any order about collection of the currants duty, but on 19 May the king ordered the merchants released, and cancelled both the wine and the currant duties.119 Ibid. 329-31, 411, 415, 420, 546, 550; iii. 449-53, 457-8, 463, 468; APC, 1627-8, pp. 436-7.

Marlborough attended the Lords regularly from 12 Apr., arriving in time to hear the debates about the crown’s imprisonment of those who had refused to pay the Forced Loan and been denied a judicial hearing. The Commons had voted this behaviour a grievance, and that afternoon Attorney General Sir Robert Heath^‡ laid out the arguments he had made on the crown’s behalf in the Five Knights’ Case the previous autumn. However, it was left to Manchester rather than Marlborough to follow up with a motion to seek the opinion of the judges. Those who deplored the ‘new counsels’ of the past two years moved instead for a conference with the Commons, at which MPs could perhaps pick holes in Heath’s argument. Marlborough thereupon supported the lord president, and voiced the refrain of most senior lawyers throughout the session, that ‘neither the king may lose of his prerogative, nor the subjects their right’.120 Lords Procs. 1628, pp. 204-8. The judges were eventually consulted, and as Marlborough clearly hoped, they cast doubt on the Commons’ case against imprisonment without cause shown. On 21 Apr. Marlborough strove to defend the Privy Council’s right of detention upon suspicion, insisting that a cause could be ‘verbal only, and not entered’. He enlarged upon this point the following day:

I do agree that no free man ought to be committed ordinarily and generally without not only a just cause, but a just cause expressed so that the expression of the cause does not destroy the cause nor matter for which he is imprisoned. Compare the course of state and the laws and you shall see they agree together in substance, though not in form, and you shall see they meet together in the end.

Two days later, Marlborough was named to a committee which drafted a set of five propositions which were offered to the Commons as a compromise.121 Ibid. 312-14, 333.

Marlborough attended the king on 28 Apr., when the latter offered to confirm Magna Carta and six other medieval statutes as a guarantee of the liberties of the subject.122 Ibid. 323-8, 354; Russell, 370-1; M. Kishlansky, ‘Tyranny Denied’, HJ, xlii. 69-70, 76-9; J.S. Flemion, ‘A Savings to Satisfy All’, PH, x. 33-5. The Commons opted instead to draft a Petition of Right, whereupon Charles responded by undertaking not to imprison Loan refusers in future. Marlborough was one of numerous speakers who inclined to accept this compromise. However, those who did not wish to abandon the Commons gained ground over the following days, and on 17 May the chancellor of the Exchequer, Weston, offered as an alternative to the king’s letter a ‘saving clause’ for the prerogative, to be added to the Commons’ Petition of Right. When MPs rejected this initiative at a conference on 20 May, Marlborough was one of those who suggested the Lords try a different form of words. Eventually, however, the peers adopted the Commons’ draft unchanged.123 Russell, 369, 371-2; Lords Procs. 1628, pp. 429-30, 480-2, 484, 487. Another account [p. 486] says Marlborough called for a vote on whether to accept the Petition as it stood, which he presumably supposed would be answered in the negative. On 24 May, while this question hung in the balance, the Commons received a complaint that Marlborough had countermanded the king’s order of 19 May to cancel the duties on currants and wine. His secretary, Thomas Paramour, said he had acted upon a direct order from the king, but the chancellor of the duchy, Sir Humphrey May^‡, insisted this was merely a temporary hitch. The issue was dropped, but the king perhaps intended this as a warning of storms to come if he did not receive satisfaction over his prerogative rights.124 CD 1628, iii. 594-5, 598-601.

The Lords’ agreement on 26 May to accept the Commons’ draft of the Petition of Right without alteration produced a moment of elation, during which Marlborough moved that those Lords who had suffered royal disfavour – including Williams, Bristol and George Abbot^*, archbishop of Canterbury – should be permitted to kiss the king’s hands. Buckingham swiftly arranged an audience at which this gesture of reconciliation was performed.125 Birch, i. 358-9. This presumably happened at the close of the day’s proceedings, as it is not recorded in Lords Procs. 1628, pp. 531-6. However, Charles’s first answer to the Petition, on 2 June, proved unsatisfactory to the Commons, whereupon Members began drafting a Remonstrance detailing Buckingham’s misdeeds over the past two years. On 6 June, the ‘excise’ commission of 29 Feb. was mentioned in the Commons by Sir John Strangways^‡; complaint was made to the Lords on 13 June, and it was cancelled on 19 June.126 CD 1628, iv. 138, 146-7, 157-9, 164, 237, 241-2, 252, 257, 262-3, 295-6, 298, 373, 375, 377-80. Marlborough was not cited during these proceedings, but on 11 June, he was accused of conniving with Buckingham over the export of iron ordnance. One week later MPs also received a complaint that the treasurer had seized the goods of a bastard who had died intestate. It emerged that he had devoted the funds to the repair of Landguard Fort in Essex, and on 25 June, the Commons resolved that, while Marlborough may have acted incorrectly, he had not done so from greed or malice, and he was merely instructed to reverse the seizure.127 Ibid. 265, 367, 460-1469, 475-6. This petition may have been timed to distract the treasurer from giving any support to the tunnage and poundage bill, then stalled in the Commons, but ill health once again removed him from the Lords during the final weeks of the session.

Final months, 1628-9

In mid July Marlborough surrendered the treasurership to Weston in the reshuffle which took place in the weeks after the end of the 1628 session. There was some speculation that his removal was due to age, and his indifferent health was certainly beginning to cause problems. However, a more substantive reason for his replacement was that he had failed to secure passage of the long delayed tunnage and poundage bill, which became Weston’s priority in the 1629 session. Marlborough received £10,000 for his office, considerably less than he had paid for it, but his wife is said to have also been given £5,000, and his daughters were granted the nomination of two viscounts – presumably Irish titles, worth around £1,500 apiece.128 Kent Hist. and Lib. Cent. U269/1/CB105 (Herman to Middlesex, 18 July 1628); Add. 35331, f. 23v; HMC Cowper, i. 358-9; Birch, i. 377; Holles Letters ed. P.R. Seddon (Thoroton Soc. xxxvi), 384, 386. In place of the treasurership, Marlborough succeeded Manchester as lord president of the Council. The position was merely a sinecure, however, and it was presumably because of declining health that he resigned it to Secretary Conway in December. Excused attendance at the start of the 1629 parliamentary session, Marlborough was still absent at the roll call on 9 Feb., when he promised to nominate a proxy; in fact, he made his final appearance in the Lords on the following day. He died on 14 Mar. 1629, four days after the dissolution.129 LJ, iv. 6a, 25b; C142/551/108.

Marlborough wrote his will on 21 Feb., only three weeks before his death. As he requested, he was buried at Westbury, next to his first wife, giving £20 to the parish church, and £20 to the poor. In addition to her jointure estate at South Tidworth, Wiltshire, his third wife received a generous quantity of household goods, but she was expected to pay her own debts. His two unmarried daughters received portions of £2,000 apiece, while most of the rest of his estate, including ‘Parliament robes … books, collections, sculptures, pictures, portraits, portables and genealogies concerning my name and family’ went to his heir, Henry, who was granted probate only three days after his death.130 PROB 11/155, ff. 217v-18v; C142/551/108. His widow took as her second husband William Ashburnham^‡, whose Tidworth estate secured his return at nearby Ludgershall for both the Short and Long parliaments. It was presumably his grandson James Ley^†, 3rd earl of Marlborough, who arranged for the publication of his treatise on wardship in 1642, and his law reports in 1659.131 Wilts. Arch. Mag. xxii. 86; xxiv. 99; J. Ley, A Learned Treatise concerning Wards and Liveries (1642); J. Ley, Reports of Divers Resolutions in Law (1659).