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The Court in the 17th Century
A new Court?
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The High Court of Chivalry
in the early seventeenth century The fortunes of the Court of Chivalry changed dramatically with the meeting of the Long Parliament in November 1640. On the 23rd the house of commons established a committee to receive petitions relating to its proceedings, and 4 December was the last time the court met in full session. Edward Hyde was able to remark somewhat smugly that ‘the very entrance upon this inquisition put an end to that upstart court.’ This raises the question of whether its rapid demise was the true reflection of its popularity and effectiveness during the 1630s. Put another way, did the Court of Chivalry it collapse because of a groundswell of opposition to its actions and procedures; or was it a victim of changed political circumstance, ground between the juggernaut of a reforming Long Parliament and the self-interest of common lawyers? The criticisms of the court made by Hyde and his colleagues in parliament can be summarised under two main headings : firstly, that it was an innovation of the 1630s, ‘sett upp when there was noe more hope of parliaments’, designed to serve the interests of an increasingly arbitrary regime and ambitious, self-seeking, civil lawyers; and secondly, that once established it took powers to fine and imprison on ‘plea of words’ which represented all that was tyrannical and unjust about the ‘imperial law’ practiced by the civilians. The first charge, as we have seen, was only partially justified. The rationale and basis for the newly established court had been set out in James’s duelling edict and proclamations, and the initial steps towards its creation had been taken in the late 1610s and early 1620s. Moreover, responsibility for the form it took during the 1630s belonged at least as much to the Earl Marshal as to the civilians, even though, for political reasons, both Hyde and Sir Simonds D’Ewes were eager to deflect blame from the former. The second set of charges, however, had more substance. One of the features of civil law jurisdiction, in comparison with the common law, was the heavy onus it placed on the impartiality of the judge who assumed the roles of prosecution, judge and jury. As Levack has pointed out it was the failure of civil law judges to meet the exacting standards of fairness demanded of them which lends most credence to complaints of arbitrariness in the civil law courts; and the Court of Chivalry was no exception. Lord Maltravers, the Earl Marshal’s deputy and eldest son, who presided over the majority of full sittings after his appointment in April 1636, was certainly guilty of some of the high-handedness and neglect of the due process of law with with which both Hyde and D’Ewes charged him. One accusation born out in the surviving cases was that under his direction the court ramped up the size of fines and damages from a norm of around £20-£40 to in excess of £100, and sometimes as high as £500. The trend appears to have been set in late 1636 in the high-profile case of De La Ware v West, in which George West was fined £500 for seeking to impersonate a member of the nobility. The following March Christopher Copley was again fined £500 for insulting the Earl of Kingston and claiming to be his equal. Thereafter the norm for cases involving members of the peerage was fines or damages in the order of £200-£500, and for members of the knightly class often around £100-£200. Although these sentences fell short of the thousands of pounds being awarded in Star Chamber during the 1630s, they still represented strikingly hefty punishments for a court whose main sanctions traditionally had been to force a public submission, or degrade a man from his honorific status. A second charge associated with Maltravers’ regime which is harder to substantiate is that defendants were often bound over or imprisoned without proper trial. By their very nature such cases left little record in the trial proceedings; however, such evidence as there is does demonstrate that this was happening. D’Ewes’ example of Rivers v Bowton, where Bowton was allegedly arrested by a court messenger and imprisoned until he had given a bond of £100 to appear in the court on two days warning, was certainly not unique. Alongside this there is also evidence of proceedings being heavily stacked against the defendant. The case of Warner v Lynch and Snelling cited by Hyde, amply supports such a claim. When Warner petitioned Maltravers to complain that he had been jostled and insulted on the highway by two local clothiers, the deputy Earl Marshal deputy immediately wrote to two Suffolk justices, Sir Thomas Glemham and Edward Poley telling them that this was an abuse of ‘so high a nature as deserves severe and exemplary punishment.’ The justices, after a somewhat cursory investigation of the facts, duly reported back that ‘the foulnes of the abuse [was] such a one as in theese parts we have not knowne’, and the clothiers were convicted and sentenced to the unusually heavy penalty of a £200 fine and 200 marks damages. This case exemplified the difficulties inherent in the multiple roles of civil law judges, and there was scope for a further conflict of interests when the court was used to back up the actions of patentees, after the king had referred a complaint of opposition by Sir Popham Southcott, the soap monopolist, to its jurisdiction in February 1638/9. The criticisms of the court made by Hyde, D’Ewes and others need to be balanced against considerable evidence indicating that it was popular amongst litigants. None the less, there is evidence of bias and arbitrariness in its proceedings, especially under the direction of Lord Maltravers.
Proceed to: Charles I’s anti-duelling campaign
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Steve Rea & Richard Cust |
