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| THE COURT OF CHIVALRY |  |
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The Court in the 17th Century
A new Court?
Guide to Users
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The High Court of Chivalry
in the early seventeenth century This set the context for regularising the meetings of the court in 1634. The decision to go ahead with this was not one which was clearly defined, or traceable to any specific royal instruction, equivalent to James’s command to ‘restore and settle’ the court in 1622. Rather it was something which developed out of a series of opportunities which civil lawyers were able to seize upon and exploit. For much of the early seventeenth century the civil law was a profession in decline. Attacks on its jurisdiction by common lawyers, and the aggressive use of prohibitions, had begun to produce a shortage of jobs which, as Brian Levack has demonstrated, fed through into a decline in the numbers of Doctors of Civil Law graduating from the universities and a fall in the membership of Doctors’ Commons, the professional body representing those who practiced in London. James professed concern over the trend, but did little to try to reverse it. Charles, however, saw the civil lawyers as natural allies of the crown and the Laudian clergy, and inaugurated a series of measures to help them. As early as December 1625 he ordered Archbishop Abbott to work with the privy council to ensure that senior diocesan positions were reserved for Doctors of Civil Law. In February 1633 the privy council addressed the damage done to Admiralty court jurisdiction by prohibitions and directed that in future these were not to be issued against cases which concerned matters taking place abroad or on the high seas. Finally, in December 1633, Charles met with his councillors to discuss measures ‘for the breeding up of able and sufficient professors of the Civil and Canon Laws’ and to ‘incite a sufficient number of men of eminent parts and abilities to apply their industry to the said studies and professions.’ They came up with the solution of ensuring that henceforth all vacant masterships of the Court of Requests, and eight out of the eleven masterships of Chancery, should be reserved for civilians. These measures would take time to have an effect; but meanwhile they helped to create a climate of opinion which was markedly receptive to initiatives to improve the lot of civil lawyers. It may well have been around this time that Arundel – as he later recalled for the benefit of Edward Hyde – received advice from ‘Sir Henry Martin and other civilians who were held men of great learning’ that the trial of cases for ‘plea of words’ in the Court of Chivalry was ‘just and lawful.’ In these circumstances the civilians were well placed to make the most of the opportunity offered by another high profile case, Hooker v Holmes. This arose out of a murder committed during a duel which had taken place overseas, in Newfoundland, and which therefore fell under purview of the Court of Chivalry. Because it was a capital offence it again required the attendance of the High Constable, and once more Lindsey was temporarily appointed to the position. Hearings commenced on 26 February 1633/4 and continued through March and April until, on 26 April, Holmes was sentenced to hang and then, subsequently, pardoned. On this occasion, however, the opportunity provided by the revival of formal sittings of the court was not allowed to slip away and other plaintiffs started to bring cases, no doubt encouraged by Marten and Duck who were managing Hooker v Holmes. At the session on 1 March, which Hyde identified as the first for which records of the ‘new’ court survived, another action was added in which Abraham Bowne complained that Henry Throckmorton had accused him of being ‘cowardly, petty minded and a liar’, and challenged him to duel. Dr Duck, acting as counsel to Bowne, argued that these words were ‘punishable to prevent the effusion of blood’ and the judges agreed, fining Throckmorton £6 13s. 4d. (with £10 costs) on 24 May 1634. This appears to have been the first instance of a case in a full court hearing being determined on the basis of ‘scandalous words likely to provoke a duel.’ Others soon followed. By 26 April the court was hearing Turney v Woodden, and on 30 June 1634 Woodden was found guilty and sentenced to pay £10 damages (with £5 costs) for having ‘used and given unto Robert Turney divers ignominious and disgracefull words, and amongst others to have given him the lye.’ During May several other plaintiffs weighed in with actions, including Dr Thomas Temple, himself a civil lawyer, who complained against Bray Ayleworth for giving him the lie and assaulting him in July 1633. By 30 June 1634 ten cases were in progress. What appears to have happened is that once word spread that the court was open for business this rapidly generated suits and the court’s proceedings developed their own momentum, fed by the gentry’s desire for cheap and rapid redress in cases involving defamation, and by the civilians’ appetite for fees. Between March 1634 and April 1640 the court was able to establish itself as regular component of the hierarchy of central law courts at Westminster, largely unimpeded by challenges to its jurisdiction. A memorandum of ‘Certeyn reasons that the professors of the common lawes ought not to be excluded from practisinge in cases of honor’ appears to have been largely inspired by the common lawyers’ desire to gain a share of the lucrative fees; but it did rehearse familiar arguments about the inferiority of the civil law as ‘a meere stranger’ to ‘the lawes and customes of this realme.’ A more direct challenge to the court’s jurisdiction came in a case from May 1636 in which William Say, a Middle Temple barrister, and later parliamentarian and regicide, was prosecuted for ‘publishing both by word and writing that my Lord Marshall’s decrees and constitutions were contrary to lawe.’ When approached by Thomas Thompson with an order for his client to pay heralds’ fees he had retorted that these were illegal and the court’s constitution ‘was of no validitie.’ He maintained this position when summoned before Sir Henry Marten and was fined and imprisoned. Others who challenged the court on the issue received similarly short shrift. These were indications that throughout the late 1630s the court’s practitioners felt confident of their ability to uphold and defend their jurisdiction. They were no doubt considerably encouraged by an important privy council ruling of February 1637/8 which supported their right to act on ‘plea of words’. In the case of Sherard v Mynne the council stipulated that, although the defendant had already been heavily fined in Star Chamber, because the bill was ‘for words spoken by Sir Henry Mynne of the Lord Sherard, tendinge to his disgrace’, it was also ‘to be heard & censured in the earl marshall’s courte’, which duly happened. Arundel himself also displayed considerable assertiveness in heading off efforts to obstruct proceedings from the court. In Powis v Vaughan the defence counsel pleaded that under the 1624 Statute of Limitations there was no case to answer because the alleged scandalous words had been uttered many years earlier. The Earl Marshal referred the matter to the Lord Privy Seal, the Earl of Manchester, two of the lord chief justices and Sir Henry Marten. Manchester and the judges, who were all common lawyers, gave their opinion that under the terms of the statute the court could not take notice of words uttered more than twelve months previously, and even Marten argued that under civil law an action had to be brought within two years. Arundel, however, accepted the plea of Powis’s counsel that the Court of Chivalry had ‘never been strickly tyed in matters of honor, either to the common or the civill lawe, but arbitrary’, and ordered that the case should proceed. Edward Rossingham’s report of these proceedings – along with others in March 1638/9 which involved heavy fines for relatively trivial offences – indicated that there was some public disquiet over the court’s actions. But prior to the summoning of the Short Parliament there appears to have been no come back.
Proceed to: The litigants
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Steve Rea & Richard Cust |
