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The Court in the 17th Century

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The High Court of Chivalry in the early seventeenth century

The Earl Marshal and the reform of the court

Thomas Howard, Earl of Arundel and Surrey,  was appointed Earl Marshal on 29 August 1621 and set about reforming the court. One of the first challenges he faced was a denial of its authority by Ralph Brooke, York Herald, on the grounds that the Earl Marshal had no jurisdiction in the absence of a Lord High Constable. Brooke was attempting to overturn a ruling made by the Lord Chancellor in 1613 that his case (which involved suing his fellow heralds over fees) could not be removed to the Court of Chancery, but must be heard by the Court of Chivalry, and he openly declared that he would overthrow the authority of the Earl Marshal and his court. Arundel referred the matter to the king, and the king passed it on to the privy council, who came back in July 1622 with a  declaration that during any vacancy in the office of Constable the Earl Marshal had authority to try cases in the Court of Chivalry on his own. This was confirmed in a privy seal letter from the king on 1 August, which also instructed Arundel ‘to restore and settle the honourable proceedings of that court with addition of all the rights thereto belonging ; for which our pleasure is that you assiste yourself as much by antient records and precedents as you may.’

Over the following months the Earl Marshal sponsored extensive research in records covering the period up to the end of the sixteenth century, when there had last been an Earl Marshal. He established the basic procedures for hearing a case; secured a warrant from the attorney general to set a table of fees; and appointed  Dr Arthur Duck as king’s advocate to the court. This last move was particularly significant because Duck was one of the leading civil lawyers of the day, and his appointment signaled that from now on the court’s procedures were to be based in Roman civil law. As G.D. Squibb has shown, this had been the case in the medieval period, but during the sixteenth century both civilians and common lawyers had practiced in the court. Now the primacy of civil law jurisdiction was re-established and common lawyers were excluded; but this did not happen overnight. During the first major hearing of the reformed court, the case of Leeke v Harris, there was still some debate over who should be allowed to act as counsel , and it was ordered that ‘because civil lawyers were not of the councell in drawing up the bill, common lawyers might.’

Seating plan for the High Court of Chivalry for the hearing of the dispute over the title of Lord Abergavenney before the Earl of Essex,  Earl Marshal, in November 1598
(By permission of the Chapter of the College of Arms)

Proceedings in the revived court commenced on 24 November 1623, with a full formal session in the Painted Chamber, set out according to the arrangements in the time of the last Earl Marshal, Essex, in 1598. Arundel and six leading peers sat on a raised platform under the king’s arms, with the court register, heralds, counsel and officials arranged around a large table below them. This was to remain the normal layout for full sessions of the court. The hearings began a with a formal reading of the king’s privy seal letter of 1 August 1622 confirming the Earl Marshal’s jurisdiction, and then Arundel himself made a speech, ‘importing the long discontinuance of the said office, and his honor’s intent to revive that which had long bin in the dust.’ He also explained that he had made careful search of precedents to ensure that he ‘might not incroach upon other courts, as his lordship hoped other courts would not incroach upon his.’ The court turned next to Leeke v Harris which concerned the issue of whether Harris had made a false claim to gentility in applying for his baronetcy in 1622; and , having established its right to try the case, it allowed Harris until the next sitting to deliver his answer and moved on to hearing Brooke’s case. There were at least twenty three further sittings of the court until the verdict was delivered against Harris on 19 November 1624. These enabled it to refine its procedures, regularise its sittings and demonstrate to the public that it was open for business; however, having taken a considerable step towards establishing the court on a permanent basis, Arundel failed to follow up.

The pedigree of Sir Thomas Harris, drawn up for Leeke v Harris
(By permission of the Chapter of the College of Arms)

Proceed to: The court under Charles I