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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of Lancel Lannister to his cousin Jaime, that while he had had sex with Cersei, he was not a traitor because he had withdrawn before emission, and ‘It is not treason unless you finish inside’ [IV:515].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