Category Archives: Sci-fi/popular culture

Peas, grass and battle beyond The Last Duel

Lots of interest in the merits, and historical accuracy, or otherwise, of the big new film The Last Duel. I hope to go and see it, though feeling a little unsure as to whether I want to sit in a cinema with a load of strangers during current circs. I have the book though, so planning to read it this weekend.

I am not going to presume to comment on the film’s medieval French context, since I am definitely not an expert on that, but, since I suspect that there will be some general wondering about the idea of trial by battle, a little bandwagon-jumping and a couple of quick musings on this from a common law point of view might not go amiss.

For many years, in my Legal History classes, I have included something on proof, including trials by ordeal and by battle. It tends to capture the attention of students just a touch more than the development of the strict settlement and the Bill of Middlesex, for some reason. It is one of the useful areas to push students’ imagination a little, and to try and get them to see beyond the Whiggish distinction between ordeals and battles (stupid) and juries (great and totally unproblematic). With ordeals, there is the fantastic article by Kerr et al.[i] to give them to read, and a case to be made for there having been something of value in the so-called ‘irrational’ mode of proof, when compared to contemporary alternatives. Battle is rather a harder sell, and I confess that I tend to send students off to read the articles by M.J. Russell,[ii] and then in class go for cheap shock value and do Ashford v Thornton in a slightly Horrible Histories way … There is obviously more to say than general agog-ness at the late extirpation of the possibility of TBB though. The gender aspect is, of course, important – women were not supposed to engage in TBB, and do not seem to have done so (though there is one slightly bizarre 15th C story about a duel being ordered between a female accuser and a Franciscan friar, who was supposed to fight with one hand tied behind his back![iii] I have spent vain hours trying to track that one down …) Then there are the accounts, in chronicles and legal sources of battles themselves, and the procedure which they followed, or should follow. Some of these are extremely impractical and ritualistic – with weird weapons, a lot of formulaic language and rules. I was reminded, the other day, when looking for something completely different, that another thing which is really fascinating is the fact that those fighting a TBB took an oath against sorcery.

I stumbled on this version in The Boke of Justices of Peas (printed 1506),[iv] in its little ‘how to’ guide to holding a trial by battle, and was enchanted (!). It’s prescribed for an approver (man who had ‘turned king’s evidence’ and was trying to save his skin by accusing another man of felony and then beating him in a TBB):

‘This here you iustice that I have this day neither ete ne dronke nor haue upon me Stone ne Grasse ne other enchauntement sorcery ne witchecrafte where thoroughe the power of the word of God might be enlessed or demenysshed & the deuylles power encresed and that myn appele is true so help me god and his sayntes and by this boke &c.’

[Justice, hear this: I have not eaten nor drunk today, nor do I have upon me stone, grass or other enchantment, sorcery or witchcraft which might serve to diminish the power of the word of God, and increase the devil’s power, and that my appeal is true, so help me God and his saints and by this book etc.’]

Seems a bit harsh not to let the poor devil eat or drink, but fits with the general religious ritualism of this sort of thing. What about the magic though … what ideas does that reveal about ideas as to how TBB worked, and how it could be derailed. It does seem to suggest that God could be foxed by a magic stone or grass (magic grass – new to me – I assume it is the green lawn stuff, and not some special other early modern meaning – sure somebody will tell me if I am wrong …), which is a rather interesting theological position, when you think about it. Belief in magic is one thing, thinking it could actually transcend the human world and put God off his stride, when intervening to say where the truth and right lay in a trial by battle is several steps further on, I would say. It just seems a really fascinating meeting of two sorts of supernatural belief. And it is made all the more striking as the formula for the duel goes on to bar human intervention to help one side or the other – by advice to take advantage of the opponent, or  physical help. It is as if the magic thing and the weighing in of spectators are on a par, equally likely![v] Possibly the supernatural issue can be rendered a little less blasphemous by thinking that the idea behind it must be that the magic grass etc. could skew the result by acting on the bodies of the combatants, rather than on God. Seems a bit weaselish, but maybe that works.  Feeling once again as if I have a lot to learn! It’s certainly something to think about as we enjoy the big film (or book …) and as we approach Halloween.

GS

16/10/2021

[i] Kerr, MH, Forsyth, RD, and Plyley, MJ, ‘Cold Water and Hot Iron: Trial by Ordeal in England’, Journal of Interdisciplinary History 22.4 (1992): 573-95.

[ii] Russell, M. J., ‘I Trial by Battle and the Writ of Right’, Journal of Legal History 1.2 (1980): 111-34 ; ‘II Trial by Battle and the Appeals of Felony’, Journal of Legal History 1.2 (1980): 135-64; ‘Trial By Battle Procedure in Writs of Right and Criminal Appeals’, Tijdschrift Voor Rechtsgeschiedenis 51.1 (1983): 123-34.

[iii] Bellamy, John G,  The Law of Treason in England in the Later Middle Ages (Cambridge, 1970), 145; Eulogium Historiarum, III, 389.

[iv] Glazebrook, P. R. The Boke of Justices of Peas, 1506 : With an Introduction by the General Editor (London, 1972). It’s a book which sounds slightly unpleasant if you are a Scot (add the peas and it is all a bit graphically vomity). It is a collection of various ‘templates’ for legal proceedings which might have seemed useful to somebody acting as a JP, or one of his officials. The material is not particularly new – it’s 15th C stuff, perhaps quite a bit from the reign of Henry VII, but earlier than that too.

[v] The no sorcery rule appears in  older sources too– see Russell (1983) above, p. 132.

Photo by Artie Kostenko on Unsplash

Friar Tuck in the Fifteenth Century

Here is a by-catch snippet from a King’s Bench plea roll which might appeal to the more train-spotting completist type of Robin Hood fan (not judging you!) … what seems to be an additional reference to Robert Stafford, naughty Sussex chaplain, who conducted a life of crime under the alias Friar Tuck (or, at least, a reference to a Friar Tuck being up to no good in Sussex).[i]

The name of Stafford (if that’s who this was – as seems likely) is not mentioned, but the description of the offence in the KB plea roll for Michaelmas term 1421 (KB 27/642 m. 32 (AALT IMG 305) might be of interest: at Lewes in 1420, it was presented that Robert Southe of Laughton in co. Sussex, gentleman, Thomas Wodhacche of Horsham, yeoman, and John Pyttekene of Laughton, yeoman, on February 1417, at Plumpton in a place called Lynterygge, with weapons including bows and arrows, their faces hidden, and painted with various colours (make up or camouflage paint? RuPaul’s Drag Race or Celebrity SAS: Who Dares Wins?) beat up Walter atte Brome and Simon Martyn, shouting, amongst other things, that they were the servants of their reverend master, Friar Tuck – and they rampaged around the countryside for some time, terrifying the populace.

There is something of the carnivalesque about this, and perhaps the presence of the ‘gentleman’ amongst the gang suggests that this was not quite a band of desperate starving men. Nevertheless, this seems to be a tale of violence, at some distance from the true story of Robin Hood (which, as we all know, is about cute Disney animals in a forest).

Anyway – hope that is useful to somebody. Off to ride through a glen … or would be, if Covid permitted.

GS 13/2/2021

[i] See Holt, Robin Hood (London, 1982) 58, for reference to this man and his band of followers in 1417 and 1429 (CPR 1429-36, 10) Note that current circumstances mean no library access, so I am fairly sure I haven’t seen this reference before, but that doesn’t mean it isn’t already ‘out there’ somewhere! For more Robin Hoody goodness from the same time – clearly a key point in the Robin Hood myth-making – see Seipp 1429.051  http://BU Law | Our Faculty | Scholarship | Legal History: The Year Books : Report #1429.051 For another 15th C emulation of Robin Hood and co., see TNA SC8/27/1317A

Star Trek: The Legal Generation?

There are a fair few trials in the original incarnation of Star Trek, but it is in The Next Generation that we really get legal. It kicks off with a trial (camply omnipotent villain Q puts on a trial of humanity, dressed up as a rather Civil Law looking judge),

See the source image

https://larryprevost.com/wp-content/uploads/2017/07/star-trek-TNG-judge-q1.jpg

and continues in a very law-focused way, before coming back to the idea of Q trying Picard as representative of humanity, in the very last episode – pronouncing that ‘The trial never ends’. Captain Picard being rather more of a thinker than Captain Kirk, there is more scope for quite involved legal issues, and it is arguable that law and trials are major themes of TNG – even more so than poker and detective-fantasies, the tedious holodeck and Deanna Troi’s expert jumpsuited counselling (‘But what do you think?’; ‘I think you know the answer to that’ and similar insights). Anyway, I think there’s enough of a pretext for a Star Trek post on here, so here are some of the legal and law-adjacent bits I found interesting. (There is also all sorts of slightly ponderous stuff about the Prime Directive, and treaties, but those don’t float my space-boat to the same extent).

 

Crime, trial  and punishment

Q’s trials of humanity are, to say the least, questionable in terms of the vagueness of the charges (‘being a grievously savage race’…) and the procedure. They are far from the only ‘criminal’ cases in TNG. These also jumped out at me as interesting.

1:8 features the hapless Wesley Crusher in danger of being put to death by lethal injection for a trivial infringement of a law he didn’t know about on a planet of irritatingly physically perfect dimwits. Cue some argument about the Prime Directive and the nature of law. Bad knitwear fans everywhere can breathe a sigh of relief – Crusher lives to wear terrible jumpers another day. And let’s not mention the quilted waistcoat monstrosity of 7:20 – nearly as ‘criminal’ as the faux-Scots accents and geography featured in 7:14).

3:14 has a long drawn out trial to determine whether Riker can resist extradition to Tanuga IV to face charges of murder and perhaps attempted rape, under a system which presumes a person guilty until proven innocent (obv. Prime Directive would mean he’d have to be tried in that way if he was extradited). There is much on hearsay evidence and its acceptability (fine as far as the Tanugans are concerned, not as the Federation sees it), and a reconstruction is important in exonerating Riker.

3:17 has a lot of content involving Klingon law and customs. Lt Worf’s father is falsely accused of treason – of having betrayed a Klingon colony to the Romulans (they of the shoulder pads, Mary Quant hairdos, Warbirds and cloaking devices). He is dead, but this doesn’t matter much, as a finding can still be made, and it will stain the name of the whole Mogh family, including Worf and his brother. The Klingons are clearly very cool (best boots in space, and those groovy sashes .. ) and their legal procedure involves challenges and battle. We don’t get all the way through a case, sadly, as Worf nobly accepts disgrace, despite his father’s innocence, for the good of the Klingon empire, set to be blown apart if the truth emerges (that the actual traitor was somebody very powerful). 4:7 has more Klingon law – Lt Worf exercises the right of vengeance, challenging the killer of his mate, and killing him. Bit of an echo of the medieval appeal perhaps? Starfleet, of course, is not pleased, but Worf is entirely justified under Klingon law.

4:21 has a trial of a medical officer, Simon Tarses, for sabotage. Tarses, though innocent of that, is part Romulan and has concealed this. It is used against him by a rather crazed prosecutor/investigator. We see that the Federation has a ‘right to remain silent’ so as not to self-incriminate, just like 20th/21st century Anglo-American systems, and Tarses uses this at one point.

4:22 has resonance in relation to suicide and euthanasia, depicting Kaelon II, a society with a custom of requiring suicide (‘the Resolution’) when a person reaches 60, so that they do not decline. There is a clash between the Prime Directive and the magnificent Lwaxana Troi (Daughter of the Fifth House, Holder of the Sacred Chalice of Rixx, Heir to the Holy Rings of Betazed) over whether to stop nice almost-sixty-year-old scientist Timicin from going back to his planet to kill himself in accordance with the custom. In the end, he goes back, and she rises to the occasion, to go and be with him at the end.

5:12 has a novel crime – rape by invading the mind – perpetrated on Counsellor Deanna Troi by Jev, a telepathic Ullian, who hijacks a memory of her and Riker, and intrudes himself into it. There is no justice here, however. Showing the limits of law?

5: 16 – more Klingons, more suicide. Worf is paralysed after a rather ignoble accident, and wants to kill himself, asking Riker to assist. The method to be used is (of course) both ritualised and bloody – a jagged dagger to the heart. A combination of hope of medical help and a wish not to desert his slightly troubled son Alexander turns him away from this decision. Interesting absolutist/relativist discussion of suicide and disability for Klingons by Riker and Picard.

 

Persons

Personhood v. property comes up in relation to Lt Commander Data (an android), in 2:9.  There is a highly charged court scene in which Capt. Picard has to argue what is apparently a novel point. Of course, he prevails, and Data is ruled not to be property (and so cannot be experimented on contrary to his will). Data also features in an interesting discussion in 6:9 ‘The Quality of Life’ (20:20-22:30) about what life is. I am seriously thinking of using this in a forthcoming paper on the beginning of life in medieval law. That would cause amusing confusion in an audience of legal historians.

There are bits and pieces on sex and gender – and, while some of it is a bit more progressive than Kirk-era stories, there are some curious failures to imagine that things could change. On the prescient side, we have, e.g., 5:17 which introduces us to the J’naii, a people who have (almost entirely) evolved past the idea of sex/gender. One of them, Soren, falls for Riker, of course (he is, apparently, irresistible – just don’t see it myself …) and comes out as ‘really female’. There is a trial of a sort, ending with some sort of treatment which removes this aberrant feeling of sexedness, leaving Soren content and Riker sad (as he has fallen in love with her within half an hour’s acquaintance – not saying the man’s shallow, but …). On the ‘aren’t aliens backward about these things’ front, we have the Ferengi, who apparently don’t let their women do much, or, indeed wear clothes (1:5), and the Klingons seem mostly to favour men in public functions (though the women do get clothes). There are also arranged marriages –  as in the ill-fated union planned for everyone’s favourite Betazoid/Human Wellness-Adviser-Before-Wellness-Was-A-Thing, Deanna Troi and some drippy doctor bloke 1:11, and in the story of the metamorph woman bred and trained as a peace-weaver in 5:21. (The former marriage does not work out, leaving Troi to have a complicated and wide-ranging love life, but the second goes ahead (non-interference and all that) despite the fact that the (hot) woman ends up ‘bonding’ with Picard, and will now have to spend her life with a deeply unattractive and unworthy politician). Curiously un-prescient (I hope), however, is the assumption that, in the 24th C,  somebody as high-powered and independent as Beverly Crusher would have taken the name of husband 1, and not only taken the name of husband 2, but kept it after a divorce (7:26).

 

Misc.

A couple of others worth mentioning …

We get legal again in 4:13 with an attempt to enforce a very old contract between a supposed deity/ demon, Ardra, and the people of a planet (Ventax II) she allegedly helped to sort their planet out, in return for a promise that the people’s descendants would submit to serve her in a thousand years’ time. Top legal strategy here from Data and Picard, using a Ventaxian precedent to demand arbitration. We then have an ‘arbitration’ which looks very much like a US style trial, complete with ‘objection!’ etc., and some pretty good arguments as to performance, but then goes off on a more sci-fi path with some flashy demonstrations of Ardra’s powers, debunked when our heroes get control of her boxes of tricks. She is confounded and imprisoned as a fraud.

6:10 and 11 are the place to go for those who like a bit of international/intergalactic law. Picard is captured by the evil lumpy Nazi-ish Cardassians (yes, the name-similarity with the not-at-all-crass-and-charmless family of reality TV fame is quite funny – this is where excessive plastic surgery could lead) and tortured, but not without getting out an objection that this is contrary to the Seldonis Convention – sounds v like Geneva Convention (crossed with the Selden Society???). There is a bit of a legal issue though in terms of him possibly being a spy rather than a POW.

There is also a lot to think about in terms of colonisation: this is treated as almost entirely unproblematic, which is all very of its time, though generally what is being colonised (by the Federation at least) is uninhabited planets, and at least Picard seems to be very open-minded about what amounts to ‘life’ and should be left alone.

 

‘The Trial Never Ends…’

But the show did. Now I have finished filling in the gaps of my viewing of both Original Star Trek and The Next Generation, and Netflix is pushing Deep Space Nine on me. I am not sure whether I am ready to ‘boldly go’ there yet. There seem to be a lot of episodes and I am not convinced it’s worth the commitment. On the other hand, I do fancy Voyager, and may miss some important lore by not following things through .. maybe in Stardate 2021?

GS 12/12/2020

Law’s Federation: the trials of Captain Kirk

Trials in Star Trek

It is interesting to see the ways in which a mid-20th C American sci-fi series portrayed legal process, with all sorts of references to what was and what ought to be (in a fundamentally just entity like the United Federation of Planets, and its military wing, Starfleet). I recently watched Series 2 episode 12, ‘The Deadly Years’, which includes a ‘fascinating’ [thank you Mr Spock] legal proceeding to determine whether Captain Kirk should be relieved of his duties, due to physical and/or mental incompetence.

The story revolves around mysterious and rapid degeneration which affects members of the crew, including Kirk, who have visited a planet, Gamma Hydra IV, making them age about thirty years per day. Spock, also affected by this process, but, due to his Vulcanicity, not to quite the same extent, is obliged by a guest character – the bossy but ultimately rather incompetent Commodore Stocker – to set up and chair a competency hearing.

Spock acts as Presiding Officer, chairing and also examining witnesses (so not the classic common law judge role). he process is directed to answering the question ‘is Kirk unfit to command’, a decision to be made by vote by a board, after hearing evidence from witnesses (directed to examples of Kirk’s repetition of orders, forgetting that he had signed things, showing a failing memory, as well as his previous good memory – showing decline) and evidence from a computer assessment of Kirk’s physical health, confirmed by expert witness (but also board member) Dr McCoy. The board deliberates in secret. Kirk would seem to have the right to call witnesses, though chooses not to call them. Unlike the splendid dress uniforms seen in Star Trek court martial scenes, we are in normal uniforms here, with four board members arrayed around a modernist asymmetrical table, other crew members (witnesses, unclear if they had a vote) behind them, and Kirk on the other side on a ‘naughty chair’. The outcome is that he is found unfit, and is relieved of command. It does appear to be correct, according to the story, but perhaps one might wonder at the potential for injustice in the role allowed to several other officers affected – albeit perhaps to a lesser extent – with the same condition as Kirk. There is no obvious appeal from the decision, though once the cure is found an Kirk’s condition reversed, he seems to just resume his command, without formal process – a little slack, surely, unless the decision included a provision for this eventuality.

Looking forward to more Final Frontier Laws …

to be continued.

16/7/2020

Gender running Amok? Thoughts on classic Star Trek episode ‘Amok Time’ (1967)

This episode (the first episode of the second series) has several iconic aspects – first appearance of Chekov, first time out for the Vulcan salute and only trip to Vulcan in original Star Trek – but on rewatching it during my lockdown completist marathon, I was struck by two things. The first was the Legal-Historian-pleasing ‘trial by battle’ between Spock and Kirk with lirpa – weapons looking not a million miles away from medieval judicial duel weapons. Another time. It’s the second I went away thinking about, and will muse upon here – the portrayal of women. Not strictly Legal History, I suppose, but then again, both LH and Sci-Fi are about messing about with time, imagining other eras; and there are certainly some resonances with ideas about women in history, so I think I’m allowed.

The fabulous Lt Uhura on the bridge is not given much attention here – she is just doing her job. The three who are prominent are Nurse Christine Chapel, on the Enterprise, and, on Vulcan, T’Pau and T’Pring. These three all interact with Spock, who is in the grip of the pon farr mating urge, and, to cut a long story short, has to go to Vulcan to consummate his union with T’Pring, or, it is feared, he will die.

Chapel is the least inspiring of the trio. She is revealed to be hopelessly keen on Spock, fussing about after him and bringing him Vulcan soup. Very nurturing. Doesn’t go down well, though, Spock is quite nasty to her.

The best action is on Vulcan, where we have the powerful T’Pau – a diplomat, judge, and more, who presides over what was supposed to be a marriage and turned into a ritual battle – and the fascinating T’Pring. As Lt Uhura exclaims, she is beautiful.

The portrayals of T’Pau and T’Pring are very interesting. They are in some ways positive and forward-looking (in earthly terms – remember when this was written) but the writers could not quite let go of the assumptions of their own times. T’Pau, for example, is respected by all, but is portrayed as rigid and perhaps cruel. Powerful woman as ‘cold-hearted-bitch’ model? T’Pring is clever – even Spock praises her logic – but we are supposed to see her as a bit of a scheming minx and Vulcan ‘gold-digger’, arranging things so that she can get Spock’s property but be with the beefier Stonn instead. I wondered to myself, also, whether it was easier to give power to women who were ‘other’, rather than to the human women, who, on the Enterprise, were always subordinate to men. The Vulcans were portrayed as decidedly ‘Oriental’ (in an indefinite, pan-Asian manner). T’Pau on her litter, with her formality, was particularly reminiscent of an empress of China. Then again, she did remind me slightly of the statues of the BVM which are carried through Spanish streets on holy days. (That of course would make a nice contrast with T’Pring as an Eve-like temptress).

Vulcan law and customs as portrayed here include elements popularly regarded as ‘medieval’ – as well as trial by battle, we had marriages arranged by families at an early age, and the idea of a wife as the property of a man. I was particularly disappointed to hear T’Pau buying into the ‘wife as property’ thing: not much female solidarity with T’Pring there. I assume that there was no Mr T’Pau, otherwise, on this evidence, she would have been at home being a chattel. Even Spock entered into woman as property trope territory when he left Stonn with a little speech about ‘having’ not being as good as wanting (T’Pring, or women in general…) I must say, I came away from watching this as a grownup feeling admiration for T’Pring, for playing the system and getting out of what was clearly a most illogical arrangement. Live long and prosper, T’Pring! (And give Nurse Chapel some tips on not being an inter-galactic  doormat).

GS 27/6/2020

The Lord and the Law Part IV: Capital punishment in the Lord Peter Wimsey novels of Dorothy L Sayers

The date of writing and setting of the Wimsey novels means that the killers unmasked by the aristocratic sleuth are liable to execution by hanging. It is not something from which Sayers shrinks, nor something which Wimsey can ignore.

There are anti-hanging voices in the novels. The ‘fast’ and drug-addled Dian de Momerie in MMA expresses negative sentiments about the death penalty, for example, telling Wimsey ‘I went to a murder trial once. There was a horrible old man, the Judge – I forget his name. He was like a wicked old scarlet parrot, and he [gave the death sentence] as though he liked it (MMA loc 3291). In GN, Miss Barton, a rather ridiculous figure, is also opposed to capital punishment. She bases this on a sympathetic view of murderers: ‘Our attitude to this whole thing seems to me completely savage and brutal. I have met so many murderers when visiting prisons, and most of them are very harmless, stupid people, poor creatures, when they aren’t definitely pathological.’ (GN, 36). This view is put down by our heroine, Harriet Vane, who comments that Miss Barton ‘might feel differently about it …if [she had] happened to meet the victims. They are often still stupider and more harmless than the murderers. But they don’t make a public appearance. Even the jury needn’t see the body unless they like. But I saw the body in that Wilvercombe case – I found it, and it was beastleir than anything you can imagine.’ … ‘And … you don’t see the murderers actively engaged in murdering. You see them when they’re caught and caged and looking pathetic. But the Wilvercombe man was a cunning, avaricious brute, and quite ready to go on and do it again, if he hadn’t been stopped’ (ibid.)

A more unusual view is expressed in Gaudy Night by Miss Edwards. While she feels that hanging is ‘wasteful and unkind’, she does not think murderers deserve to be ‘comfortably fed and housed while decent people go short’, and concludes that, as a matter of economics, ‘they should be used for laboratory experiments’. Lord Peter is not keen. (GN, 408).

Wimsey has at some point seen an execution, the implication being that he felt it his duty, if he was involving himself in the investigation of murder, and the conviction of murderers, to take some responsibility for the consequences of so doing: ‘I got permission to see a hanging once… I thought I’d better know … but it hasn’t cured me of meddling.’ (BH, 430). Clearly he has thought about it deeply, and put himself in the position of the condemned prisoner: ‘They give them something to make them sleep … It’s a merciful death compared to most natural ones … It’s only the waiting and knowing beforehand… And the ugliness. … Old Johnson was right, the procession to Tyburn was kinder … “The hangman with his gardener’s gloves comes through the padded door” (BH 430-31). It is made clear that he does feel his responsibility: he suffers from ‘nervous depression’ after an execution, when he has been involved in the case. (TD, loc. 309, and particularly in the last chapters of BH). Wimsey finds it particularly difficult to contemplate hanging a woman, despite an intellectual conviction that there should be equality here:‘Peter was conscious of a curious reluctance. Theoretically, he was quite a ready to hang a woman as a man, but the memory of Miss Twitterton, frenziedly clingng to Harriet, was disturbing to him.(BH, 163).

The overall view of the capital punishment question from the leading characters is positive in intellectual terms, but it is clear that the whole business is emotionally troubling. His views on and involvement in capital punishment provide some of the more thoughtful and thought-provoking moments in the Wimsey books, and give some interesting insights into contemporary non-abolitionist attitudes.

GS 18/9/2015

Abbreviations

WB                  Whose Body? (1923) set 1922?[1]

CW                  Clouds of Witness (1926)

UD                  Unnatural Death (1927)

LPVB              Lord Peter Views the Body (short stories) (1928)

UBC                The Unpleasantness at the Bellona Club (1928)

SP                    Strong Poison (1930)

FRH                Five Red Herrings (1931)

HHC               Have His Carcase (1932)

HH                  Hangman’s Holiday (short stories) (1933)

MMA              Murder Must Advertise  (1933)

TNT                 The Nine Tailors (1934)

GN                  Gaudy Night (1935)

BH                  Busman’s Honeymoon (1937)

SF                    Striding Folly (short stories, published 1972)

 

TD                   Thrones, Dominations (by Jill Paton Walsh, based on a sketch by Dorothy L Sayers, 1998)

 

 

The Lord and the Law: Legal Content and Ideas in the Lord Peter Wimsey stories of Dorothy L. Sayers Part II: The Faithful Family Solicitor

The Lord and the Law: Legal Content and Ideas in the Lord Peter Wimsey stories of Dorothy L. Sayers

Part II: The Faithful Family Solicitor

Contrasting in some respects with Sir Impey Biggs is another recurring lawyer: the solicitor, J. Murbles of Staple Inn(UBC loc890). Sayers’s portrayal of Murbles is generally positive, if somewhat condescending. While Biggs, the socially superior representative of what was very much the ‘higher branch’ of the legal profession, is physically impressive, Murbles, a lowlier lawyer, is described as a ‘little elderly gentleman … so perfectly the family solicitor as really to have no distinguishing personality at all, beyond a great kindness of heart and a weakness for soda-mint lozenges’(UBC loc 197), burdened by a ‘delicate digestion’ (CW 30). Nevertheless, Wimsey respects his sense, in law and in life, consulting him on issues relating to property (UD 162) and describing him as a ‘wise old bird’, who takes sensible precautions in dangerous situations (UD 223).

Unsurprisingly for one in his profession and station, Murbles’s political views appear to be Tory-traditionalist: thus, he is impatient with the socialist anti-aristocrat view of the radical Goyles, and is convinced that ‘the law’s the law for everybody’ (CW 162), which the benefit of hindsight tells us is a somewhat naive view to have held (albeit fictitiously) in the 1920s and 1930s. He can take a joke along familiar cynical lines relating to the legal profession – so when Lord Peter asks him whether lawyers ever go to heaven, he responds with a dry ‘I have no information on that point’ (UBC loc 273).

Murbles defers to his legal superiors, and is ready to consult counsel on more involved matters of property law. When a case turns on changes in the rules of succession following the 1925 property legislation (much beloved of English and Welsh law students to this day). Murbles suggests consulting a barrister, Towkington, ‘quite the ablest authority I could name’, on the point (UD 166). Although Murbles has his own ideas about the point, he defers to Towkington (UD 170).

All in all, Murbles is a resourceful and useful professional man who knows his place, both with regard to Lord Peter and with regard to the barristers with whom he has to deal.

 

Abbreviations

WB                  Whose Body? (1923)

CW                  Clouds of Witness (1926)

UD                  Unnatural Death (1927)

LPVB              Lord Peter Views the Body (short stories) (1928)

UBC                The Unpleasantness at the Bellona Club (1928)

SP                    Strong Poison (1930)

FRH                Five Red Herrings (1931)

HHC               Have His Carcase (1932)

HH                  Hangman’s Holiday (short stories) (1933)

MMA              Murder Must Advertise (1933)

TNT                 The Nine Tailors (1934)

GN                  Gaudy Night (1935)

BH                  Busman’s Honeymoon (1937)

SF                    Striding Folly (short stories, published 1972)

 

TD                   Thrones, Dominations (by Jill Paton Walsh, based on a sketch by Dorothy L Sayers, 1998)

Law and Lord Peter: Legal Content and Ideas in the Lord Peter Wimsey stories of Dorothy L. Sayers

Part I: Of courts and canaries

The Lord Peter Wimsey novels of Dorothy L. Sayers are regarded as among the very best ‘golden age’ detective novels. As well as being enjoyable in their characterisation and their intricate plotting, they also have a lot to say about contemporary attitudes to law and justice, and, although the interwar period is far away from my own medieval research haunts, it is still sufficiently ‘past’ to amount to something of legal historical interest. In these short notes, I will set out some key themes and ideas which occur in the novels (and to a lesser extent, the short stories) involving the aristocratic sleuth, with or without the excellent Harriet Vane and the ever-faithful Bunter. The first topic to which I would like to turn is that of lawyers. The interwar years, the setting for these novels, saw the last years of the noted barrister Sir Edward Marshall Hall, amongst others, and women had recently been admitted to the Bar and the solicitors’ profession. What did Sayers give us in terms of fictional lawyers?

The towering legal figure in the books is Sir Impey Biggs KC, a leading criminal barrister, MP and canary breeder. At the time of Clouds of Witness, he is ‘thirty-eight, and a bachelor’ [CW, 68]. A legal family may be indicated by his Christian name, John Impey having been a famous legal writer of the eighteenth to nineteenth century, and Sir Elijah Impey an Indian judge of a slightly earlier period.

He is physically impressive, with ‘towering height … a shapely, expressive hand that would have made an actor’s fortune [which he found] useful in the exploitation of dramatic moments’, a ‘magnificent build’, ‘[noble] head and mask’, and ‘[flawless] features’ [CW, 68]. He has a ‘beautiful, resonant and exquisitely controlled voice’ [CW, 69]. Wimsey notes his ‘statuesque profile and is reminded of ‘the severe beauty of the charioteer of Delphi.’[CW, 70].

It is in his professional capacity that Biggs is generally seen. He is described as ‘our greatest criminal lawyer’ by Lord Peter, who shows his respect for Sir Impey’s skill on a number of occasions. Sir Impey’s skill in securing an acquittal for his clients is noted [WB, 23]. Biggs ‘was celebrated for his rhetoric and his suave but pitiless dissection of hostile witnesses’ [CW, 68].

Biggs is seen in action in Strong Poison in the most important case of all – the trial of Harriet Vane for the murder of Philip Boyes. He is for the defence in this case. On the subject of Harriet’s having lived with Boyes without being married, the judge described his creative pleading, saying ‘Sir Impey Biggs, very rightly using all his great eloquence on behalf of his client, has painted this action of Harriet Vane’s in very rosy colours; he has spoken of unselfish sacrifice and self-immolation, and has reminded you that, in such a situation, the woman always has to pay more heavily than the man…’[SP, loc. 134].

Biggs’ technique is also described in Busman’s Honeymoon when he defends Frank Crutchley – an unrepentant murderer: ‘Sir Impey Biggs, eloquent on behalf of the prisoner – ‘this industrious and ambitious young man’; hinting at prejudice ‘a lady who may have some cause to fancy herself ill-used’; indulgently sceptical about ‘the instrument of destruction so picturesquely constructed by a gentleman whose ingenuity is notorious’; virtuously indignant at the construction placed upon ‘words uttered at random by a terrorised man’; astonished to discover in the case for the Prosecution ‘not a scintilla of direct proof’; passionately moving in his appeal to the jury not to sacrifice a young and valuable life on evidence so flimsily put together.’ [BH, 421].

Sir Impey fancies himself very perceptive: ‘Sir Impey Biggs was accustomed to boast that no witness could perjure himself in his presence undetected. As he put the question, he released the other’s eyes from his, and glanced down with finest cunning at Wimsey’s long, flexible mouth and nervous hands.’[CW, 72].

He can be a relaxed raconteur, but can also pace, smoking, and can be very businesslike, almost brutally so [CW, 72]. He can manipulate, but remains unmoved himself: ‘Tragic irony, cutting contempt of a savage indignation were the emotions by wh Sir Impey Biggs swayed court and jury: he prosecuted murderers of the innocent, defended in actions for criminal libel, and, moving others, was hard as stone.’[CW, 69]

He is all for his client, even suggesting to Wimsey that it may be best if a particular piece of evidence, or individual, is not found – showing an interesting contrast between the aristocrat’s mission to find the truth, and his own, to win the case for his client [CW, 71]. This point comes out even more clearly in an exchange in Clouds of Witness, when Wimsey says ‘Damn it all, we want to get at the truth!’, Biggs replies, ‘I don’t. I don’t care twopence about the truth. I want a case.’ This leads Wimsey to conclude ‘that the professional advocate [is] the most immoral fellow on the face of the earth’.’[CW, 168]

Sir Impey is not above courtroom stunts, such as having a patient show the court her leg in the Quangle and Hamper v Truth case (a case concerning claims for medicines) [CW, 164]. and uses lots of ‘abnormal cases from Glaister and Dixon Mann till the eyes of the jury reeled in their heads.’ in another case [WB, .22].

He can be slightly cynical in his expression – ‘Lawyers enjoy a little mystery, you know. Why if everybody came forward and told the truth, the whole truth and nothing but the truth straight out, we should all retire to the workhouse’ [CW 69] and ‘It is wonderful what you can suggest to a jury if you try.’[CW, 70] Similarly fitting the lawyerly stereotype is the suggestion of greed in his remarks on hearing that Wimsey is not prosecuting despite having been the victim of attempted murder – ‘Really? Oh my dear Wimsey, this will never do. Lawyers have to live, you know.’[CW, 165]

Biggs does have some morals however. When asked by Wimsey what tactics are justified in dealing with a blackmailer, he replies ‘There you’ve put your fingers on Society’s sore place, where the Law is helpless. Speaking as a man, I’d say nothing could be too bad for the brute. It’s a crime crueller and infinitely worse in its results than murder. As a lawyer, I can only say that I have consistently refused to defend a blackmailer or to prosecute any poor devil who does away with his tormentor’ [LPVB, loc 1535’The unprincipled affair of the practical joker’].

Outside court and the Commons, he cuts a much less significant figure. Two rather belittling quirks are noted: ‘[t]he breeding of canaries was his unexpected hobby, and besides their song, he could appreciate no music but revue airs.’[CW, 68] Furthermore, the qualities which make him such an effective lawyer may mean that he will be unable to find domestic happiness: ‘his .. eyes [are] ruthless’ and Wimsey’s mother, the rambling yet perceptive Dowager Duchess of Denver ‘had once remarked “Sir Impey Biggs is the handsomest man in England, and no woman will ever care twopence for him”’ [CW, 68].

 

Abbreviations (references are to page number, unless preceded by ‘loc.’, in which case a Kindle location is meant)

WB                  Whose Body? (1923)

CW                  Clouds of Witness (1926)

UD                  Unnatural Death (1927)

LPVB              Lord Peter Views the Body (short stories) (1928)

UBC                The Unpleasantness at the Bellona Club (1928)

SP                    Strong Poison (1930)

FRH                Five Red Herrings (1931)

HHC               Have His Carcase (1932)

HH                  Hangman’s Holiday (short stories) (1933)

MMA              Murder Must Advertise (1933)

TNT                 The Nine Tailors (1934)

GN                  Gaudy Night (1935)

BH                  Busman’s Honeymoon (1937)

SF                    Striding Folly (short stories, published 1972)

 

TD                   Thrones, Dominations (by Jill Paton Walsh, based on a sketch by Dorothy L Sayers, 1998)

Laws of Ice and Fire: George R.R. Martin, Song of Ice and Fire cycle from a legal historian’s perspective Part II E: Property Law

Laws of Ice and Fire: George R.R. Martin, Song of Ice and Fire cycle from a legal historian’s perspective

Part II E:

Property Law

Individual ownership of personal property and land (though with feudal overtones) is the norm in Westeros, and acquisition by sale, gift and inheritance is in evidence. Real property may be lost by abandonment [V:42]. Little more is revealed. One possibly problematic area is property in dragons. Daenerys Targaryen appears to see them as (her) property [II:528], but whether they can be regarded as truly under her control, or should be so regarded, is not entirely clear.

Some marginal and ‘foreign’ cultures take a different view of the appropriate relationship between people and things or land, and the appropriate modes of acquisition of property.

A notably different view persists amongst the Ironborn. Fittingly, the motto of House Greyjoy is ‘We do not sow’ [II:154], and their ‘Old Way’ praises and asserts religious justification for those who ‘reave and rape’ [ibid.]. An interesting gender distinction is made: in the Old Way, whilst ‘women might decorate themselves with ornaments bought with coin’, there was a more demanding requirement for ‘warriors’, who were allowed to wear only the jewellery they took from ‘the corpses of enemies slain by his own hand’. This was known as ‘paying the iron price’ for the jewels [II:166].

The Dothraki do not acquire property through sale, but through a system of (semi-) reciprocal gift-giving [V:73], and do not have a strong concept of individual property since they see it as appropriate for members of a former khalasar to remove the ex-khal’s herd: ‘it is the right of the strong to take from the weak’ [I:733].

Also far from Westerosi concepts is the view of the Wildings. Ygritte expresses views reminiscent of some native American or aboriginal peoples, disputing the idea of individual ownership of (some?) land and chattels, which are worth quoting in full: ‘The gods made the earth for all men t’ share. Only when the kings came w their crowns and steel swords, they claimed it was all theirs. My trees, they said, you can’t eat them apples. My stream, you can’t fish here. My wood, you’re not t’ hunt. My earth, my water, my castle, mu daughter, keep your hands away or I’ll chop them off, but maybe if you kneel t’ me I’ll let you have a sniff. You could call us thieves, but at least a thief has t’ be brave and clever and quick. A Kneeler only has t’ kneel.’ III:462.

 

The feudal element

Lordship and feudal ties are much in evidence, though little explained. High lords have bannermen, bound to them by oaths, though the connection with land grants has not been explored, and no doubt there is more to say about the rights and responsibilities of lords and ‘smallfolk’. It is clear that (some?) people can choose to whom they swear themselves – e.g. Brienne of Tarth swears to Catelyn Stark [II:508] in what seems more like a personal bond than something land-related.

Wardship is a known institution, though it is not always well-distinguished from fosterage and hostageship. Thus Theon Greyjoy is said to be the ward of Ned Stark [I:12] but is in reality a hostage for his father’s good behaviour following a rebellion against Robert I Baratheon [See also I:22; I:37].

Money It is interesting to note that there is no equivalent to the medieval Christian horror of usury. The Iron Throne pays ‘usury’ on its loans [III:361] and Cersei tells merchants to pay usury on their own loans from the Iron Bank of Braavos [IV:604].

 

Abbreviations

I:          George R.R. Martin, A Game of Thrones

II:        George R.R. Martin, A Clash of Kings

III:       George R.R. Martin: A Storm of Swords

IV:       George R.R. Martin, A Feast for Crows

V:        George R.R. Martin, A Dance with Dragons

World: George R.R. Martin, E M Garcia Jr, L. Antonsson, The World of Ice and Fire: the untold history of Westeros and the Game of Thrones

Number references refer to pages in I – V, but to Kindle locations for World.

Gwen Seabourne

28/12/2014

Laws of Ice and Fire: George R.R. Martin, Song of Ice and Fire cycle from a legal historian’s perspective IID: criminal law

Laws of Ice and Fire: George R.R. Martin, Song of Ice and Fire cycle from a legal historian’s perspective

Part II

Substantive Law

 

D: Criminal Law

The Song of Ice and Fire mentions a variety of different ‘criminal’ offences, many of which are broadly similar to (medieval) English offences (pleas of the crown), though often there is insufficient evidence to allow exploration of the definition of the individual crime. There are offences against the person, against property and the state or crown.

Treason

Treason is a recognised concept, though, as in medieval Europe, its definition appears somewhat uncertain or contested. It includes at least killing the king and adultery by or with the queen [IV:515, 653]. Those in power might try to extend the concept, thus Cersei Lannister states that saying that Joffrey is not the true heir to Robert Baratheon is treason [I:509] and Joffrey says failure by those instructed to swear fealty to him to do so is treason [I:598]. Ultra-loyalist Eddard Stark considers it treason not to reveal that Joffrey is not the son of Robert Baratheon, and so is not the true heir to the Iron Throne. Littlefinger, however, taking a more pragmatic approach, says it is only treason ‘if we lose’[I:495].

A glimpse into (at least popular understanding of) the law of treason by adultery can be seen in the statement of Lancel Lannister to his cousin Jaime, that while he had had sex with Cersei, he was not a traitor because he had withdrawn before emission, and ‘It is not treason unless you finish inside’ [IV:515]. Clearly, then, assuming that such withdrawal is seen as a reliable method of contraception, Lancel understands the treasonous element of this version of the offence to be activity which would endanger the purity of the royal line, rather than any sort of sexual activity with the queen.

Women and children connected with rebellious males can be adjudged traitors, suggesting, perhaps, an idea of treason by contagion, or at least, in the case of children, a low threshold for capacity for guilty intention [I:598]. Joffrey, as king, calls a woman a traitor, and has her locked up, when she comes to his court and asks for the head of an executed traitor whom she loved, as she wants to ensure that he has proper burial. The royal logic is that  ‘If you loved a traitor, you must be a traitor too’.[I:721]. The context, however, indicates that Joffrey is not acting in accordance with law or custom in his determinations.

There is, perhaps, a wider idea of offences of ‘lesser’ treason, or sedition, lurking in the popular understanding. Jaime Lannister notes that the ‘old penalty for striking one of the blood royal’ was losing a hand’ [IV:517]. This suggests that action short of ‘high’ treason, and extending beyond the persons of the king, queen, heir and heir’s wife, could be taken particularly seriously. Also, those who disparage those in power may face disabling punishment. So a tavern singer who made a song that ridiculed the late King Robert, and Queen Cersei, is subject to mutilation [1:721]. Cersei also presses for mutilation of anyone speaking of incest or calling Joffrey a bastard, though this is not accepted by others [II:208].

Perhaps to be regarded as akin to treason is the offence of ‘deicide’ with which the High Septon wants to try Cersei Lannister. Killing the High Septon (or complicity in his homicide) is so regarded because the person in this role ‘speaks on earth for the gods’ [V:727].

Homicide

Killing another subject other than in war or in execution of justice is a crime, and is designated murder. A more expansive view of the conduct which can amount to murder is taken than would be found in the medieval common law – thus, not feeding one’s wife might be regarded as murder [II:474]. It is seen as a plausible defence to a murder charge that one was acting on the orders of a superior: e.g. when Beric Dondarrion’s brotherhood try the Hound, Sandor Clegane, for crimes including murder [III: 384 ff], the Hound denies guilt, and says, in relation to the accusation that he murdered the butcher’s boy, Mycah, that he ‘was Joffrey’s sworn shield. The butcher’s boy attacked a prince of the blood’, and when  Arya Stark says it was she who attacked Joffrey, the Hound argues that he ‘heard it from the royal lips. It’s not my place to question princes.’ [III:386]. This defence does not, however, convince his accusers (though, as he is successful in a trial by combat under the auspices of R’hilor, the Lord of Light, perhaps there is some approbation of his argument).

Vengeance is not regarded as an excuse or justification for homicide, so Robb Stark executes Rickard Karstark for his vengeance killing of two Lannister prisoners [III:231]. Likewise, being ‘mad with love’ is not an excuse (or not a complete excuse?) for homicide [IV:173].

There is room for differing views on the borderline between killing made lawful by war and murder. Thus Eddard Stark regarded as murder the killing of Prince Rhaegar Targaryen’s wife and children, during the war which led to the defeat and deposition of the Targaryens by Robert Baratheon, but Robert regarded it as legitimate action during a time of war, however troubling (and , initially at least, ordered the killing of Daenerys Targaryen and her unborn heir once he heard that she was pregnant) [I:106].

In Westeros, tournaments may end in death, without condemnation of the killer [I:286], and at Dothraki weddings, fights to the death over women are unpunished [I:97]  Beyond Westeros, some cultures enjoy homicide as a spectacle, akin to Roman gladiatorial games. This is not acceptable to (at least some) Westerosi sensibilities. Thus, Daenerys Targaryen bans the fighting pits of Meereen. She is, however, obliged  to reopen them, to ensure political  stability. There is pressure both from the populace who wish to watch ‘the mortal art’, and the fighters who want the chance to fight for glory [V:155]. She tries to make these arenas less offensive and cruel than they had been, insisting that fighters must choose freely to participate, or else be in certain classes of criminal (murderers and rapers may be forced to fight, as may slavers, but not thieves or debtors) and all fighters must be of age [V:693] She does not manage to do away with the ‘humorous’ fights of ‘cripples’ and dwarfs.

Particularly condemned are the kingslayer, the kinslayer and the killer in violation of guest-right [II:578; World: 3852; III:83]. Violations of guest-right, , under which it was forbidden to kill one who had eaten at one’s board, and for the guest to kill his host, are condemned particularly amongst the Northmen [World: 3852; III:83], but guest right is mentioned in relation to widely spread parts of Westeros, for example: the Wall [V:142]; the wildings and the North [III:83], Dorne [V:511]. There is a suggestion that it is a matter of the laws both of gods (old and new) and of men [IV:276; III:83]. Kinslaying is likewise described as an offence against the laws of gods and men [II:578].

There is some idea of sacred spaces in which special rules of peace apply. Bloodshed is forbidden in Vaes Dothrak, the sacred city of the Dothraki [I:477]. Nevertheless, there is a loophole, and traders there employ stranglers to kill thieves, so as to kill without offending against the ban [I:478], and Khal Drogo kills Viserys without offending against the ban by crowning him with molten gold [I:483]. Places sacred to the Faith are also not to be used for bloodshed. The High Septon regards the beheading of Eddard Stark on the steps of the Great Sept of Baelor as a profanation {II:36, 52].

Interestingly, and unlike the situation under the laws in medieval Europe, there is no suggestion that suicide is regarded as a crime.Shara Dayne’s suicide is seen as something to pity rather than to condemn [V:879 – though note that she was ‘mad with grief’ at the time]. The supposed suicide of Ser Cortnay Penrose is not particularly condemned [II:583]. Tyrion considers killing himself with poisonous mushrooms, rather than allowing Cersei to capture him alive [V:353], and although that does not prove that suicide would not be condemned, there is no sense that he has moral reservations about it.

Cannibalism, whether or not involving homicide, however, is a capital offence, at least under Stannis Baratheon’s rule, and even if the person in question is starving [V:818]. The Dothraki clearly did not consider that any laws forbade leaving ‘deformed children’ to be eaten by feral dogs [I:314]. How Daenerys’s smothering of the living but incapable Khal Drogo {I:736] would be viewed in Dothraki  or Westerosi law is unclear. She clearly saw it as a mercy killing, and the right thing to do. Euthanasia is a contested issue, but there is some support for it. It is suggested that Bran should be put out of his misery after his fall and paralysis, and that Patchface the fool should be given milk of the poppy as a method of euthanasia when he has lost his mind, but these options are not taken up [II:7; III:823] and Val, the ‘wilding princess’ advocates killing children with greyscale – smothering, stabbing or poisoning them [V:708]. Beric Dondarrion, Sandor Clegane and others approve of giving the dying (after a fight) ‘the gift of mercy’ [III:441;728]. The House of Black and White in Braavos (in which Arya Stark ends up) also gives out the ‘gift of mercy’ or ‘gift of who shall live and who shall die [which ] belongs to Him of Many Faces’- [IV:350].

Whether or not abortion is an offence is unclear. Lysa Arryn and Littlefinger’s baby was aborted, Lysa being tricked by her father into drinking an abortifacient [III:912], but, although the dying Hoster Tully feels guilt, it is not clear whether this would be regarded as a crime.

 

Sexual offences

Rape is certainly a criminal offence, but it is widely practised.

It is unsurprising in a patriarchal, quasi-medieval world to see at least some men of Westeros blaming women for their own rape, if they act outside certain norms. So Lord Randall Tarly tells Brienne of Tarth that she will have ‘earned it’ if she is raped, because of her ‘folly’ of taking arms and acting as a knight. If she is raped, he tells her not to look to him for justice [IV:234]. He had made a similar statement in the past, when a group of knights had had a bet as to who could take Brienne’s ‘maidenhood’. Tarly thought they would have taken her by force eventually, but he laid the blame for the knights’ conduct squarely upon Brienne: ‘Your being here encouraged them. If a woman will behave like a camp follower, she cannot object to being treated like one…’ [IV: 238]. Jokes and bawdy stories about non-consensual sex were also current [World: 5560], and it is regarded as plausible that women make false claims of rape [I:261].

The description of bawdy stories concerning Lann, trickster ancestor of the Lannisters, which have him ‘stealing in night after night to have his way with the Casterly maidens whilst they sleep’ do not use the word ‘rape’ about this conduct, and it seems unlikely that it would be so regarded [World, 5560].

Rape is regarded as normal after a battle victory, though Daenerys Targaryen is unhappy with this practice, and tries to rein in the Dothraki when they behave in this way [I:644]. Stannis Baratheon actually manages to keep his soldiers in check during the fighting in the North, and it is remarked that only three wilding women were raped after his victory [III: 858].

It is accepted, even by the ‘abolitionist’ Daenerys Targaryen, that a master having sex with his slave does not commit rape, because the slave is his property [V:42].

Signs of changes over time and different views on the relevance of women’s consent to sex can be seen in discussions of the ‘right of the First Night’. This seems to have been present in at least some parts of Westeros, was valued by ‘many lords’ and was banned by King Jaehaerys I Targaryen, at the behest of his sister/wife [World: 1620]. Even at the time of the Song cycle, however, some lords maintain the right. Roose Bolton states that ‘where the old gods rule, old customs linger’ – and suggests that this justified his raping a miller’s wife, who became the mother of his bastard, Ramsay Snow [V:429]. Bolton said that another northern family, the Umbers, also keep the first night rule (though there is a suggestion that they are secretive about this) as do some of the mountain clans and those on Skagos [ibid.]. The potentially savage enforcement of the right is shown in Bolton’s description of his treatment of the mother of Ramsay. Since the marriage of the miller to this woman had been conducted without the permission or knowledge of Roose, the lord had been cheated. He therefore had the miller hanged and chained ‘and claimed my rights beneath the tree where he was swaying [V:429].

Abduction of women, perhaps linked to the old ‘wife stealing’ custom maintained by the wildings, was made a crime by Aegon the Dragon, apparently ‘at the urging of Queen Rhaenys [World: 5065]. Such crimes could be destabilising, as was the case with Prince Rhaegar’s ‘infamous absduction of Lyanna Stark, which contributed to a war and the overthrow of the Targaryens [World, 3691].

Homosexuality is disapproved in Westeros (thus the former rent boy, Satin, is despised on the Wall, and a chronicler notes with surprise that the Dornish are not concerned by either male or female homosexual acts [World:6893]), but there is no sign that it is contrary to the law, except, perhaps amongst the Ironmen. Thus, Victarion Greyjoy, finding himself in charge of a group of slaves, weighs the ‘perfumed boys’ down with chains and throws them into the sea, regarding them as ‘unnatural creatures’ [V:832]. Septon Utt hanged by Beric for killing boys he molested. III:441

Prostitution is generally legal, and brings in tax revenue for the Crown. Cersei Lannister justifies allowing prostitution as a safeguard against ‘common men’s tendency to ‘turn to rape’ if prostitutes are not available to them [IV:606]. Others had not taken the same view. The pious Targaryen king Baelor I the Blessed had tried to outlaw prostitution within King’s Landing, expelling the prostitutes and their children [World: 2552]. Stannis Baratheon similarly wanted to outlaw brothels [I:265]. Neither was successful. The guilt for spreading sexually transmitted diseases might be attached to prostitutes, leading to their punishment, as when Lord Randyll Tarly, orders that ‘a haggard grey faced whore’, accused of giving the pox to four … soldiers’ be punished [IV:233].

 

Piracy and smuggling

These are crimes in most of Westeros, [II:11] but piracy in particular was regarded as admirable by one group – the Ironborn. There were attempts by Harmund the Handsome, a convert to the Faith, to make sea-reaving a capital offence, but this did not catch on [World: 5248].

Offences of dishonesty

Theft is an offence, and its definition is wide enough to include such conduct as cheating at dice [IV:233].

There is evidence of regulations concerning adulteration of food, or cheating customers – as in many medieval European cities. Thus Tywin Lannister, acting as Hand for Aerys II (Mad) ‘sternly punished bakers found guilty of adding sawdust to their bread and butchers selling horsemeat as beef.’ [World: 3312], and Lord Randyll Tarly sentences a baker, found guilty of mixing sawdust in his flour, to a fine of fifty stags or whipping [IV:232].

 

Punishment for crime

Mutilation and capital punishment are the expected consequences of a conviction for serious crimes.

Those found guilty of murder or treason might be hanged or beheaded, often with a sword on a block of wood [I:12].or, in the reign of ‘Mad King’ Aerys II, or under Stannis Baratheon, burned [World: 3519; V:818]. The Eyrie has its own rule or custom with regard to execution – convicted felons are ‘sent out through The Moon Door’ [I:406] – falling to their death from this lofty exit. An alternative – though whether this is to be considered a post-conviction punishment, or an extra-judicial method of disposal is unclear – is confinement in the ‘sky cells’, cells open on one side over a sheer and fatal drop. This was the fate of Marillion the singer, who confessed to having killed Lysa Arryn, (though he had not) when mad with love. It was thought that ‘the blue would call to him’ (i.e. he would have an insane longing to die) and he would jump [IV:173]. On one occasion, in the Iron Throne jurisdiction, a man who has killed his wife by beating is sentenced to be beaten a hundred times, by the dead woman’s brothers – which, presumably, resulted in his death [World: 1313].

Execution seems always to be done publicly. One custom which has no obvious medieval parallel is the Starks’ practice of the man who passes the sentence also carrying it out [I:12].. This, claims Eddard Stark, dates to the times of the First Men, whose blood he claims runs in the veins of the Starks. [I:14]. Stark justifies this by saying ‘If you would take a man’s life, you owe it to him to look into his eyes and hear his final words. And if you cannot bear to do that, then perhaps the man does not deserve to die…. A ruler who hides behind executioners soon forgets what death is’ (ibid.). He insists that his seven year old son, Bran, watches him execute a deserter from the Night’s Watch, to familiarise himself with the practice and gain experience for the day when he has to ‘do justice’ in this way. Clearly, Eddard Stark finds it an unpleasant, unsettling experience, since after he has executed somebody, he goes to ‘seek the quiet of the godswood’ [I:19]. Robb Stark also executes in person, beheading Rickard Karstark with an axe [III:231]. This episode tells us that the formula for such Stark executions is to ask the prisoner before he is killed if he wishes to speak a final word. The Starks do not keep up ‘aspects of the of culture of the North’ such as hanging the bodies and entrails of executed criminals and traitors from the branches of weirwoods [World: 3836]. In the Iron Throne’s jurisdiction, bodies, or body parts, may be exhibited after an execution, to deter others from committing crimes [e.g. IV:232]. It is not clear that the Starks perform mutilations in person, though Stannis Baratheon did amputate Davos Seaworth’s fingers himself, at the insistence of Davos [I:913].

Joffrey beheads Eddard Stark for treason[I:718], though he claims that he could have had him torn or flayed [I:718]. Special dishonour is done to the bodies of traitors, so, for example, after execution, Stark’s head is held aloft by the hair for the crowd to see, by Janos Slynt II:39], and Joffrey has it exhibited, though Tyrion orders the removal of spiked traitors’ heads[II:56].

Tyrion is sentenced to death when his champion loses in the trial by battle to determine his guilt or innocence of poisoning Joffrey [III:791]. Men are burned as traitors by the regime of Stannis Baratheon – thus Alester Florent is burned as a traitor [IV:800]. This is likely to have been influenced by Stannis’s conversion to the religion of R’hilor, Lord of Light, which emphasises sacrifice by burning. Differential punishment for treason, by gender, is noted in IV: 151 – the male rebels of Duskendale, in the time of King Aerys, were beheaded, while the lord’s wife was mutilated and burned alive. Some traitors and rebels might be pardoned, once they come to the king’s allegiance [see, e.g. III:819, pardons temp. Tommen ‘Baratheon’].

In addition to corporal penalties, traitors (and rebels, if there is a distinction) are subject to property penalties, their lands and titles being forfeit to the crown [I:598]. Joffrey passes bills of attainder against various people who rebelled against him as their lawful king, stripping them of their lands and incomes [III:818]

Gelding appears to be the accepted punishment for rape. Daenerys assumes this [V:42],though after the fall of Meereen, she  ‘had decreed that …. rapists [were to lose] their manhood.’ [III:806]. Gelding as a punishment for rape is noted in Westeros, [I:114]. Stannis Baratheon gelded the soldiers in his army who raped wilding women after his victory in the North [III:858]. Removal of fingers was the punishment meted out by Stannis on Davos ‘to pay for all his yrs of smuggling’[II:11.]. A cheat is sentenced to lose a little finger, though is allowed to choose which hand should be mutilated [IV:233, Lord Randyll Tarly]. Losing a hand might be the consequence of poaching [I:2], and was formerly the penalty for ‘striking one of the blood royal’ [IV:517]. A sailor who had stabbed an archer through the hand for cheating at dice is sentenced to have a nail driven through his palm (even though it seems to have been accepted that the archer had, in fact, been cheeting [Lord Randyll Tarly, IV:233]. Those criticising or ridiculing people in power may be disabled from repeating their offence in future. This can be seen in the treatment of a tavern singer and harpist accused of making a song ridiculing Robert and Cersei: he is put to his election of keeping his tongue or his fingers [1:721], and tongue-ripping is suggested by Cersei for anyone who questions Joffrey’s legitimacy [II:208]. Alleged responsibility for spreading ‘the pox’ could be punished by rough and painful cleaning followed by (indefinite) incarceration, as when Lord Randyll Tarly, sentences a ‘whore’, to have ‘her private parts’ washed out with lye before she is thrown in a dungeon [IV:233]. Punishment mutilations do not seem to be done in public, or at least not immediately after sentence, though it is noted that Joffrey, as king, dispensing ‘what it please[s] him to call justice’ from the Iron Throne [I:720]  has a thief’s hand chopped off in court.

Financial penalties may be deemed appropriate for offences of economic dishonesty – so Lord Randyll Tarly sentences a baker, found guilty of mixing sawdust in his flour, to a fine of fifty stags. Corporal punishment in the form of whipping could be substituted if the baker could not pay, at the rate of one lash per stag unpaid [IV:232].

An element of religious symbolism can be seen in several punishments. A good example is the sentence by Lord Randyll Tarly, doing justice Maidenpool, on a man who has stolen from a sept. While the customary sentence for theft is apparently loss of a finger, this man is to lose seven fingers, since he has stolen from the (seven) gods. [IV:232]. Similar religious symbolism can be seen in the sentence passed by Rhaenys Targaryen on the man who beat his wife to death [World: 1313]. Other ‘meanings’ can be attached by varying punishment. For example, Robb Stark  condemns a man who complains that he was  ‘only a watcher’ of treason to be hanged last – so that he can watch the others die [III:227].

Enlisting in the Night Watch might be an alternative to corporal or capital punishment. Those who take the black to escape punishment include poachers [I:2], ‘rapers’ [I:114], ‘debtors, killers and thieves’ [I:498]. Even traitors may hope to be allowed to take the black [I:542; IV:656]. Deserting the Night’s Watch is itself an offence, and appears to be one of very strict liability. Eddard Stark condemns such a deserter as an oathbreaker, and executes him, even though he seems not to be wholly sane [I:14].

There is room for discretion in sentencing convicts. An interesting exchange occurs between two Lannisters and the Master of Whisperers over the appropriate penalty for goldcloaks who deserted during the battle of the Blackwater battle. Cersei Lannister wants them put to death (as oathbreakers). Varys suggests the Wall. Tywin, whose view prevails, orders their knees to be broken with hammers. His argument is that, if this is done, they ‘will not run again. Nor will any man who sees them begging in the streets’ [III:216]. His aim, therefore, is deterrence as well as retribution.

There is a suggestion that punishments are less severe in other jurisdictions. Thus Ollo Lophand, a man of the Night’s Watch, wants to return to Tyrosh ‘where he claimed men didn’t lose their hands for a bit of honest thievery, nor get sent off to freeze their life away for being found in bed with some knight’s wife’ [III:5].

‘The Faith’ in its criminal jurisdiction is not allowed to impose death sentences, and uses humiliatory punishments, as when Cersei has to perform a naked ‘walk of shame’ through her people for her fornication, her hair being cut and shaved, as was the custom with medieval prostitutes, [V:849].

Note that the wild Mountain Clans such as the Stone Crows and Moon Brothers, encountered and used by Tyrion, operate some sort of feud/blood price system in the event of homicide [I: 652]

Abbreviations

I:          George R.R. Martin, A Game of Thrones

II:        George R.R. Martin, A Clash of Kings

III:       George R.R. Martin: A Storm of Swords

IV:       George R.R. Martin, A Feast for Crows

V:        George R.R. Martin, A Dance with Dragons

World: George R.R. Martin, E M Garcia Jr, L. Antonsson, The World of Ice and Fire: the untold history of Westeros and the Game of Thrones

Number references refer to pages in I – V, but to Kindle locations for World.

Gwen Seabourne

28/12/2014