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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 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 IIB: Succession

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

B: Succession

Medieval common law (and other medieval legal systems) had somewhat different rules for succession to the throne from those prevailing in relation to land (and different rules again for succession to personal property). There is, likewise, some suggestion of a distinction in the laws of Westeros at the time of the Song cycle between rules for inheritance of land and rules for succession to royal and noble titles, but the matter is not always clearly differentiated. In both sorts of succession, the model which seems to be predominant is male primogeniture, for legitimate children only. The eldest son is regarded as heir to family land, titles and also to such personal property as Valyrian steel swords {I:259 – Tarly family]. There are, however, ways to alter the succession, some local differences, and some disputed issues.

There are signs that there was, in the time before the Song cycle, a less absolute tendency to male primogeniture in Westeros. It is noted, for example that there had been some question of female succession in the Riverlands, though this was rejected [World: 4395], and that Alysanne, sister and wife of Jaehaerys I Targaryen argued with her brother/husband over succession, taking the position that males did not always have to be preferred to females – so that the granddaughter of an eldest son should succeed to Dragonstone in preference to the second son’s heir apparent [World:1637].

At a Great Council held in the year 101 AC (After the Conquest), however, there was a decision that, with regard to succession to the Iron Throne, women were to be excluded. Not only were men to be preferred to women, but women simply were not to be allowed to take the throne, and, furthermore, nor could a woman transmit a claim to the Iron Throne to her descendants [World: 1673, 1703]. This, of course, looks somewhat like the ‘Salic Law’ insisted upon by the French from the fourteenth century, to exclude the descendants of Isabella, wife of Edward II of England. Not everyone accepted this as an ‘iron precedent’, however, and King Viserys I Targaryen declared his daughter his heir, and continued to take this view even when he had a male child with a subsequent wife. Clearly seeing that this might be opposed, this king, like Henry I of England, had tried to ensure that his settlement would be respected by demanding the promises of his nobles, many of whom did homage to the nominated heiress [World: 1797]. As in Henry I’s case, however, such promises did not prevent a civil war over the issue [World: 1823]. The strong ‘no women’ rule seems to have gone by the time of the Song cycle, since it is assumed that Myrcella has a chance of succeeding, and even the pedantic Stannis Baratheon assumes that his daughter Shireen will inherit the Iron Throne which he takes to be his, if he and his wife do not produce male heirs [III:410].

By the time of the Song cycle, it is clear that descendants trump collaterals – so a maester in White Harbor tells Davos that a son must come before a brother (in terms of royal succession: ‘the laws of succession are clear in such a case.’ [V:246]), so that Tommen beats Stannis as heir to the Iron Throne after Robert I Baratheon, assumed father of Tommen, and definitely brother of Stannis, though not, of course if Tommen was shown to be a bastard. The law also provides that the child of the first son took priority over the second son [II:470], and that girls are not barred from succession – just postponed to males of the same rank. Thus Alys Karstark notes that a daughter comes before an uncle [V:591]. As with many actual medieval realms, the existence of agreed inheritance customs or laws does not necessarily stop those with tenuous claims having a go – thus Renly, Robert’s younger brother also tries for the crown. Renly accepts that Stannis has the better claim in law, but calls it ‘a fool’s law’, asking ‘Why the oldest son and not the best fitted?’ [II:435]. He rejects Catelyn Stark’s suggestion for a Great Council to decide who should reign, considering that the outcome should rest on strength, not talk [II:454]. He argues that Robert did not really have a right either, though various arguments based on past marriages to the Targaryens  were made. He argues from strength of numbers {II:320].

A major counter-current to the hegemony of male primogeniture can be seen in the law and customs of Dorne. Under Dornish rules, it is the eldest child who inherits, whether male or female [World: 6893]. Thus, by Dornish law, Myrcella should succeed to the Iron Throne before Tommen [III: 747; IV:48].The Dornish rule that females should be equal to males in inheritance terms is attributed by one Archmaester to a decree of the reign of Gaemon Palehair (allegedly prompted by a lesbian prostitute) [World: 6916], and, more generally, to the influence of the ideas of the ancient people of the Rhoyne, who settled in Dorne, amongst whom women were ‘regarded as the equals of men’ [World: 621, 760]. In Westeros, Cersei Lannister is unhappy with women’s exclusion from power [III:748].

A degree of dissent from the mainstream Westerosi pattern of succession may also be seen in the evidence concerning the Iron Islands. While Theon Greyjoy asserts the rule which would favour his own case, that a woman may inherit [lordship] only if there is no male heir in the direct line’ [II:160], and so tells his sister he is the lawful prince, Asha replies that this may be so by ‘the laws of the green lands’, but ‘we make our own laws here…’ [II:356]. A third view is that of Aeron Damphair, who sees any such fixed succession as ‘green land law’, and demanding (and obtainint) an election, according to The Old Way, rather than a succession to the Seastone Chair [IV:25, 31].

In most of Westeros, legitimacy depends on wedlock, and those born outside wedlock have ‘no name of their own’, [I:17]. Particular simple and nature-based surnames are by custom given to bastards: in the North, for example, they are called Snow [I:17], they are called Rivers in the Frey/Tully lands [I:285], Stone in the Vale, Flowers in Highgarden [I:357], Storm at Storm’s End [II:146].

Proof of bastardy seems similar to the rules of the medieval common law, in that, if there is a marriage, there is a presumption of legitimacy for offspring born to the wife. Thus, Tywin tells Tyrion ‘Men’s laws give you the right to bear my name and display my colours, since I cannot prove that you are not mine.’ [III:52].

As well as the absence of inheritance rights [I:309]. bastards are regarded as in some sense tainted. Thus, seating Jon Snow at table with the royal family might, thinks Lady Stark, be seen as an insult [I:50], and, presumably because of such slights, Jon Snow swears that he will never father a bastard, which is part of his reason for volunteering for the (celibate by oath) Night’s Watch [I:51]. Bastards can, however, be declared legitimate by royal order, as can be seen from the order for legitimation of Ramsay Snow, bastard of Roose Bolton, which was signed by Tommen [III:819]. There is also a suggestion that the Starks have a less rigid view on bastardy than many in Westeros, at least in some respects. Though Eddard Stark’s bastard was given a ‘bastard name’ – Jon Snow – they were ‘not like other men’ in the way in which they treated such children, and Eddard Stark ‘brought his bastard home with him, and called him “son” for all the north to see’ and brought him up at Winterfell with his legitimate children [I:62].

Dorne and the Iron Islands are again somewhat out of line with mainstream Westerosi law on this issue. What is described as a Dornish custom dictates that illegitimacy does not necessarily bar a child from succession [World: 6893, 6916], though Dorne does differentiate the legitimate and illegitimate to the extent that it has the customary name Sand for bastards [III:431].Also less rigid were the rules of the Iron Islands. In the law of the Ironborn, although the children of subsidiary ‘salt wives’ cannot inherit before the children of the principal wife (the ‘rock wife’), they are not wholly excluded, and can inherit in the absence of salt sons (or perhaps children) [World: 5065].

It is not clear to what extent lords may withold an inheritance from the person designated heir apparent by the general law. Tywin Lannister purports to do this, refusing to name Tyrion as heir to Casterly Rock, even though he does seem to be the rightful heir, since  his elder brother, Jaime, is a kingsguard. and his other sibling, Cersei, is postponed to him as she is female. Tywin justifies this refusal on the grounds of Tyrion’s conduct with ‘whores’ [III:52]. Wills of land appear to be allowed [II:474], so that it is presumably possible to escape the strict rules of primogeniture in this context to some extent (and there is no need for devices such as the use, employed in late medieval England for this purpose, and to avoid feudal dues), though exactly how this relates to succession to lordships rather than simply land, is not clear.

If an heir joins the Night’s Watch, or the Kingsguard, he will lose his place in succession [I:260] so this can be used to alter the succession in order to have lands and other property descend to a preferable candidate, as was done by Samwell Tarly’s father, Lord Randyll [ibid.].

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 27/12/2014

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

Substantive Law

A: Slavery, thralldom and freedom

Personal freedom – or its absence – is a recurring theme in the Song of Ice and Fire and Game of Thrones. Different territories have difference attitudes to, and laws concerning, slavery, and it is a particular concern of Daenerys Targaryen in her progress through various lands outside Westeros. Slavery is lawful in some realms and groups, such as Astapor, Volantis, and amongst the Dothraki.

Where slavery persists, slaves are essentially chattels, and can be ‘bought and sold, whipped and branded, used for the carnal pleasure of their owners, bred to make more slaves’ ’[V:870]. They are inherited when their master dies, unless explicitly freed [V:755-6]. Manumission appears to be possible, particularly on death of the owner, but the process is not described. Slaves can also buy their own freedom, which suggests that they are able to amass savings, rather than paying all incoming money over to their masters [V:443].

There is a variety of standards of treatment for the slaves. Some – such as the Unsullied – are mutilated, and may be made to kill and die for their masters. It is noted that the slaves of Volantis are assigned to a role – sweeping up dung, acting as prostitutes, fighting or other functions – and are tattooed to indicate this role [World: 7563]. Dothraki and some other slaves are obliged to wear collars, presumably to mark their status [I:32]. Ancillary laws are necessary to safeguard the institution – so in Volantis, it is forbidden to help a slave escape [V:371].

Slavery is not permitted in Braavos, a state founded by escaped slaves, [V:89], nor in the Seven Kingdoms of Westeros. [III:264]. A major feature of the progress of Daenerys Targaryen is her strong opposition to slavery, and her freeing of slaves wherever possible. Victarion Greyjoy also frees galley slaves, modelling himself on Daenerys [V:830].

So important a principle is the outlawry of slavery in Braavos that it is regarded as the First Law of Braavos that ‘no man, woman or child in Braavos should ever be a slave, a thrall or a bondsman’, and this rule is engraved on a prominent arch [World: 7635]. Slavery is described by those of Westeros as an evil, and an ‘abomination’ to all of the gods of the Seven Kingdoms.[III:264], and Ser Jorah Mornomt’s selling of some poachers to a Tyroshi slaver instead of giving them to the Night’s Watch’ was regarded as a capital offence [I:33].

Pentos does not maintain with any great enthusiasm the ban on slavery which it was forced by the Braavosi to enact [I:28; World: 7563; V:21] So, for example, those who were enslaved elsewhere seem to remain slaves there, [I:28] and although they are not technically slaves, there are those who are very close to such a status, so Magister Illyrio Mopatis tells Tyrion that his house servants will not refuse him sexual service, and makes it clear that he sees captives as the chattels of a captor [I:33].

A state of servitude which falls short of full chattel-slavery is traditional to the Iron Islands. The Ironborn use some captured on raids as thralls, to do things considered beneath the Ironborn themselves, in particular mining [World: 5035]. While the life of a thrall is very difficult, this does not amount to slavery, since the thrall is regarded as a man, not a chattel, and may not be bought and sold. Although the thrall owes his captor service and obedience, he may hold property, and may marry a spouse of his choice. What is more, the children of such a union would be regarded as free and Ironborn [World: 5041]. Some rulers of the Iron Islands disapproved of thralldom and sought to end the status, [World: 5248; 5478], but it was allowed by Balon Greyjoy, and so is legal at the time of the Song cycle [World: 5478]

Those who free slaves find themselves having to deal with the aftermath of abolishing the institution. They may offer compensation for the damage caused by escaping slaves. For example, the Iron Bank of Braavos compensated the successors of former slave-owners for the ships seized and sailed away by the original escaping slaves more than a century beforehand, though they would not restore the value of the slaves themselves [World: 7649].

Daenerys Targaryen faces claims by former slave owners, who have been, or say they have been, damaged by the process of abolition. A boy attempting to claim for offences of murder and rape by his family’s former slaves against his father, brother and mother, during the rising which led to the overthrow of Meereen and the abolition of slavery there, is sent away without the sentence of hanging which he had desired for the former slaves. Daenerys rejects his claim both because she had pardoned all crimes committed during the sack of the city, and also because she will not punish slaves ‘for rising up against their masters [V:42].

Some claims are for economic loss. A nobleman of Meereen, Grazdan zo Galare, makes a claim for a share in the profits of weaving done by his former slaves. These women had been taught the skill by another of his slaves, a woman now dead, whose name he was not able to remember. The nobleman’s claim is, however, unsuccessful, since it was the old woman, rather than the ex-master, who had taught them to weave. In addition, the noblemen is ordered to buy the women an expensive loom, as a punishment for forgetting the name of the old woman [V:42].

Daenerys is faced with the problem of retroactivity, and, whether as a matter of law or policy, decides that slave owners cannot be punished for conduct which, prior to the abolition of slavery in Meereen, was regarded as legitimate. So, when an ex-slave accuses a nobleman of rape for his actions towards the ex-slave’s wife, formerly the noble’s (slave) ‘bedwarmer’, the noble having ‘taken her maidenhood, used her for his pleasure, and gotten her with child’, this is unsuccessful. The ruling is that, at the time when the noble had sex with the ‘bedwarmer’, she was ‘his property, to do with as he would’, so that ‘By law, there was no rape’. The claimant does, however, obtain money to pay for ‘raising the noble’s bastard as his own’ [V:42].

Daenerys finds it impossible to maintain her absolute anti-slavery stance, due to political opposition. A peace deal struck between her city of Meereen and Yunka’i meant the partial acceptance of slavery. If a slave was brought into her realm by a Yunkish owner, he did not thus become free. This was the price she had to pay for the Yunkish promise to ‘respect the rights and liberties of the former slaves [she] had freed [V:664].

In addition, she is faced with the situation of some noble Meereenese wanting to sell themselves into slavery, because their lives have become squalid, and they think that they will be better off as slaves in the Free Cities: an interesting problem of present free will versus anti-slavery absolutism. In the end, she decides that she cannot or will not stop this, as long as it is actually voluntary: thus, ‘[a]ny man who wishes to sell himself into slavery may do so. Or woman.’ … But they may not sell their children, nor a man his wife’ [III:809]. Having accepted that such transactions are allowed, she imposes a tax on them [III:809].

Her freeing of the slaves of Astapor does not lead to a no-slavery area there either, since, once she has left, slavery is restored, albeit with a reversal in those who were masters and those who were slaves [V:39].

The issue of slavery in the Song of Ice and Fire is particularly interesting because characters (and particularly Daenerys Targaryen) have to negotiate a world in which the issue is contested, with contrasting rules and views in different countries. In many ways, the issues and views are more reminiscent of those prompted by African slavery in the New World, rather than medieval slavery. While there were strong voices condemning slavey in the medieval period (e.g. St Wulfstan), Daenerys’s attitude – and her solutions – are rathe more post-Enlightenment.

Gwen Seabourne

24/12/2014

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