suc. bro. Mar. 1662 as de jure 17th Bar. FITZWALTER; sum. 10 Feb. 1670 as Bar. FITZWALTER
First sat 14 Feb. 1670; last sat 12 Apr. 1679
b. ?Feb. 1646, 2nd but 1st surv. s. of Robert Mildmay (d.1646) of Overton, Northants. and Mary, 3rd da. and coh. of Sir Thomas Edmonds. m. 6 Dec. 1669 (lic. vic. gen.) Catherine (d.1725), o. da. of William Fairfax, 3rd Visct. Fairfax [I], and Elizabeth, da. of Alexander Smith, 2s. 2da. (1 d.v.p.)1 d. 1 June 1679; admon. 27 June 1679.
Associated with: Moulsham Hall, Essex.
The Mildmay claim to the ancient barony of Fitwalter, first made in 1641 by Sir Henry Mildmay of Moulsham, was contested by another Essex family, the Cheekes of Pirgo. Although his claim was not heard, Sir Henry did in practice assume the title.2 Sir Henry’s grandson, another Henry, entered his own claim in 1660 but died shortly afterwards. Henry’s younger brother Benjamin revived the claim in 1667, although, like his grandfather, he was already using the title.3 Mildmay had copies of his pedigree printed and circulated: 50 copies still survive amongst his private papers.4 The case did reach a full hearing with counsel heard at bar in 1668 ‘but weightier affairs interposing’, no judgment could be had before the prorogation of Parliament.5 The following October Mildmay petitioned the king again.6 The claim raised two major issues. The barony of Fitzwalter was a medieval creation by writ, but it had been held in tandem with the viscountcy of Fitzwalter and earldom of Sussex, both of which were peerages created by letters patent at a later date. At the death of Robert Ratcliff†, 5th earl of Sussex, in 1643 the earldom and viscountcy were both extinguished for failure of male heirs. The Mildmay claim to the ancient barony rested on descent through the 5th earl’s half sister. An additional issue for consideration was whether, irrespective of the rules of descent, such a barony could part company from the earldom with which it had long been associated. The case was heard and resolved in Mildmay’s favour at a meeting of the Privy Council on 19 Jan. 1670. Mildmay’s ability to have his case heard in council was the more surprising given that his closest political connection seems to have been with his cousin and brother-in-law, the former parliamentarian activist Henry Mildmay‡ of Little Baddow, and that another cousin, Sir Henry Mildmay‡ of Wanstead, was regarded as a regicide. It may be significant that one of the privy councillors present at the hearing of his claim was the former parliamentarian, Charles Howard, earl of Carlisle. The two men were allies: Carlisle held Fitzwalter’s proxy for most of 1670. Mildmay also took steps to get support from former royalists; he was reputed to have paid George Villiers*, 2nd duke of Buckingham, 1,000 guineas and to have courted the friendship of Charles II’s mistress, Barbara Palmer, duchess of Cleveland.7
Fitzwalter’s writ was issued on 10 Feb. 1670, enabling him to take his seat on 14 Feb., the first day of the 1670-1 session, and to secure nomination to the committees for privileges and petitions. On 8 Mar. he claimed precedence over all other barons then sitting. This issue touched the prestige of ancient baronies held alongside higher titles, such as the dukedom of Norfolk (Baron Mowbray) and the earldom of Northumberland (Baron Percy). Sensitivities were such that the House refused to decide the case immediately. A full hearing was scheduled for 22 Mar., but on that and following days the House was deeply involved in debates over the conventicles bill and the Roos divorce. On 24 Mar. the House voted to postpone the case until the first sitting on a Wednesday after midsummer. In the event a long mid-sessional adjournment meant that the first sitting after midsummer was not until October. Fitzwalter attended on 25 Mar. but was then absent until 27 Oct., covering himself with a proxy in favour of Carlisle. His next attendance was on 4 Nov., the day appointed by the House to hear his case. His claim met with strenuous opposition; it was even argued that despite the decision of the Privy Council his precedence should be calculated only from the date of his own writ of summons.8 The House made its decision on 10 Nov. when Fitzwalter agreed to be seated as the last baron of Edward I, a compromise that left the superior precedence of his major opponent, George Berkeley, 9th Baron Berkeley (later earl of Berkeley) intact. Fitzwalter continued to attend the House for several days, perhaps to underline his newly acknowledged seniority. He made only one other appearance that session, on 11 Feb. 1671, when the business of the day again involved a claim of precedence, this time that of Berkeley. Over all, his attendance had scarcely risen above ten percent of sitting days and he had been named to only two select committees.
Fitzwalter was present on 23 of the 38 days of the first session of 1673 and was named to the committees for privileges and petitions as well as to two select committees. Once again his attendance appears to have been driven by self interest, this time a complaint of breach of privilege in an attempt to bolster his position during a long running and bitter dispute with local fishermen about fishing rights in the River Burnham.9 The even briefer second session of 1673 saw him present on only one of its four days.
Fitzwalter’s attendance reached 71 per cent in the similarly short session of 1674. He missed the opening of the session and so was not added to the committees for privileges or petitions. He took the oath of allegiance on 14 Jan. but apart from one nomination to a select committee, nothing is otherwise known about his parliamentary activities.
During the spring session of 1675 Fitzwalter’s attendance fell to approximately 39 per cent, and he was again absent when the committees for privileges and petitions were named. In the course of the session he was named to only one select committee. Nevertheless, this session provides the first indication of his political sympathies. He was present in the House on 26 Apr. when several peers signed a protest against the decision to commit the non-resisting test bill. Although he himself did not sign this protest, he did sign the protest of 29 Apr. at the resolution that it reflected on the honour of the House and which emphasized the right to protest as one of the privileges of peerage. The second session of 1675 saw him again missing the opening of the session. He was present for half the sitting days and was named to one select committee. He was thought to be in favour of the address to the Crown for a dissolution of parliament but was absent for the division on 20 November.
As political controversies grew deeper, Fitzwalter faded from the scene. Listed by Anthony Ashley Cooper*, earl of Shaftesbury as triply worthy his low attendance (just over 27 per cent) during the 1677-8 session devalued any support he might have to offer. He was as usual added to the committees for privileges and petitions. On 8 Feb. 1678 he once more sought the benefit of privilege, again in relation to the dispute over fishing rights in Burnham River. The depth of bitterness engendered by the dispute led to a challenge to the authority of the House. On 19 Feb. the House learned that whilst attempting to arrest the offenders, the sergeant at arms’ servants had been attacked and beaten ‘by a great number of fishermen and their servants with clubs and hedge stakes’. The sheriff of Essex was accordingly instructed to raise a force to assist in the arrest of the offenders both for their offence against Fitzwalter and for their high contempt of the House. During the debates about the release of Shaftesbury in spring 1678 Fitzwalter’s proxy was held by George Savile, Viscount (later marquess of) Halifax. Fitzwalter did not attend the last few days of the session, but with rising anxieties about the popish plot, registered his proxy on 18 Nov. to Shaftesbury.
Fitzwalter attended on only seven of the 43 sitting days of the first session of 1678. He did not attend the next (the second of 1678) at all. In response to a call of the House on 19 Dec. 1678 his servants told the House that Fitzwalter was ‘so sick of a fever, that he is not able to attend this House without danger of his life.’
He first attended the first Exclusion Parliament on 11 Mar. 1679, during the abortive first session, when he took the new oaths and was as usual added to the committees for privileges and petitions. He was again added to the committees for privileges and petitions as well as to the committee to receive informations concerning the popish plot when the session opened properly on 17 March. He attended intermittently until 12 Apr. before once again succumbing to illness, only appearing on 25 per cent of all sitting days. Despite the indications that he was closer to Shaftesbury’s opposition group than to the court, Thomas Osborne, earl of Danby (later duke of Leeds) wrote to solicit his proxy. Fitzwalter was too ill to reply; his wife sent a polite acknowledgement referring to some as yet untraced ‘former favours’ from Danby but explaining that,
in a business of this import he believes he should not use that great privilege so justly as he ought to do it without hearing the business he gives his vote for: if his condition of health will permit him to be at the hearing you may be assured he will not disserve my lord.10
Not surprisingly, in the lists that Danby drew up that spring, Fitzwalter was marked as ‘doubtful’. Fitzwalter died the following June and was succeeded by his nine-year-old son, Charles Mildmay, as 18th Baron Fitzwalter.
R.P.- 1 Essex RO, D/DMy/15M50/51.
- 2 Ibid. D/DM/T33/11; Q/SR 353/37.
- 3 CSP Dom. 1667-8, p. 33.
- 4 Essex RO, D/DM/F2.
- 5 TNA, PRO 30/24/7, 573; LJ, xii. 217, 226.
- 6 CSP Dom. 1668-9, p. 557.
- 7 Bramston Autobiog. 120-1.
- 8 Mapperton, Sandwich mss Journal vol. x. pp. 295-6.
- 9 LJ, xii. 536, 556-7; xiii. 143, 153, 180; CSP Dom. 1675-6, p. 376; CTB, v. 138. See also, R. North, The Life of the Lord Keeper North ed. Mary Chan, 437.
- 10 Add. 28053, f. 150.