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The Court in the 17th Century

A new Court?
James I’s anti-duelling campaign
The Earl Marshal & reform of the court
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Reay v Ramsey
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Charles I’s anti-duelling campaign
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The High Court of Chivalry in the early seventeenth century

A new court?

Between 1 March 1633/4 and 4 December 1640 the High Court of Chivalry (or Earl Marshal’s Court, as it was often termed by contemporaries) was established on a regular basis for the first time in its history. [For an expanded version of this account, with a full scholarly apparatus of footnotes, see the ‘Introduction’, in R.P. Cust and A.J. Hopper (eds), Cases in the High Court of Chivalry, 1634-1640 (Harleian Society, new series vol.18, 2006).] The court could trace its jurisdiction back to the mid fourteenth century when it was set up to deal with disputes arising from the display of arms or the conduct of war; however, it was not until the 1630s that it developed a set of routine procedures based on the civil law, and was open for business, with regular sittings in the same way as other Westminster courts. As Edward Hyde told the House of Commons in April 1640, ‘this court, with these processes and proceedings, I am bold to say is very new.’
 

Two views of Arundel House on the Strand,
where the Court of Chivalry sometimes convened.

The surviving case papers and act books make it possible to trace details of 738 cases which were commenced in the court over this period. Sittings of the full court took place in the Painted Chamber in the Palace of Westminster (and during 1640 sometimes at Arundel House in the Strand) before the Earl Marshal, the Earl of Arundel, or his deputy and eldest son, Lord Maltravers, and senior members of the peerage. Because it was a civil law court it was not tied to the common law terms, and meetings took place on average once every ten days. In between there were smaller hearings before the Earl Marshal’s professional surrogate, Sir Henry Marten LL.D. Once the court had been set up on a regular basis its volume of business increased rapidly. By 30 June 1634 it had ten cases in process; at the peak of its recorded activity in October-November 1638 it was handling more than seventy cases at a time; and during the autumn of 1640, after the Short Parliament had given notice of its intention to investigate its jurisdiction, it was still dealing with between twenty and thirty cases at each sitting. The amount of business it attracted during the 1630s, still fell well short of two of the other principal civil law courts, the Court of Arches and Admiralty; but it was evidently a popular forum for litigation, and its proceedings made a considerable impact on the public consciousness, as  references in newsletters and the attention paid to it in the Long Parliament testify.

The basis for most of the actions brought before the court during the 1630s was defamation. It was also called on to adjudicate contested claims to gentility and coats of arms, together with heralds’ claims to exact fees for gentlemen’s funerals; but well over three quarters of all cases related to ‘scandalous words provocative of a duel.’ This was what Hyde identified as the really novel aspect of the court’s proceedings in the 1630s,  the claim it now made to fine, award damages and imprison in cases involving ‘plea of words.’ The court’s critics in the Long Parliament saw this as a sinister extension of arbitrary government, threatening honest citizens with ruinous penalties for which there was no warrant in common law.  Defenders of the court, on the other hand, justified such jurisdiction as urgently needed to curb duelling:

"if this cort should nott take conusans of words tendinge to the dishonor of a gentleman and a duell, where noe remedy is given by lawe then is a gentleman wounded in his honor, and is without repayre, which must needs introduce a worser inconvenience, that every man will endeavour to bee his owne judge and to right himself by duells and the like, whereby murder and the like may ensue".

As these arguments implied, the jurisdiction of the newly established court was rooted in the early Stuart monarchy’s efforts to combat the growing menace of the private duel.

Proceed to: James I’s anti-duelling campaign