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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 IIC: Marriage

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

C: Marriage

Marriage is important in Westeros, as it was in medieval Europe, for the regularisation of sexual conduct and the orderly transmission of property. In the world of Song of Ice and Fire, marriage laws and customs differ on religious, cultural and territorial lines.

In ‘the Faith’, (the ‘new’ religion of seven gods, or a seven-fold God), marriage must be between one man and one woman [World: 5058]. This also appears to be the case in those following the way of the Old Gods of the North. Not everyone has always stuck to the monogamous model, however. Some Targaryens took more than one wife [World: 1399] while the Ironborn have only one ‘rock wife’ at home, they are allowed as many ‘salt wives’ as they can capture and keep [World: 5058]. Despite attempts to outlaw the practice of taking these additional, captured, wives, [World: 5248], the Ironborn maintain it at the time of the Song cycle. The Dothraki seem to allow at least khals more than one wife, and amongst traditionalist Dothraki, the khal’s bloodriders share his wives {I:379]

Marrying close family members is regarded as wrong (‘seen as a sin by the Faith’, ‘hated by the gods’ [II:236] and ‘a monstrous sin to both old gods and new’ {II; 451]) by most in Westeros, but the Targaryens frequently married siblings or other close kin, sometimes justifying this as necessary to keep pure ‘the blood of the dragon’ [World: 1399; I:29]. The twins Cersei and Jaime Lannister also have a long term incestuous relationship, but keep it secret [I:468], though Jaime dreams of marrying Cersei, and also marrying their children to each other [III:236].

Marriage is prohibited to the Kingsguard and the Night’s Watch, [I:72, 498], to silent sisters and septons and septas [III:261]. and the maesters also are celibate [II:17]. At least for a man of the Night’s Watch, marriage could lead to capital punishment  [IV:435], though less permanent breaches of the oath of celibacy are not taken very seriously (Jon Snow notes that men of the Night’s Watch visiting prostitutes ‘was oathbreaking too, yet no one seemed to care’ [I:751], and Dareon does not regard visiting prostitutes or undertaking a one night ‘marriage’ to a prostitute as serious or dangerous breaches of his oath [IV:435].

There appear to be at least social conventions concerning the requisite age or level of maturity for completion of the marriage. Thus, when Robert Baratheon proposes that Sansa Stark and his heir, Joffrey, are betrothed, Sansa is eleven and Joffrey twelve. He says that the actual marriage ‘can wait a few years’ [I:45]. Tyrion proposes that Myrcella weds Trystane Martell of Dorne when she reaches her fourteenth year [II:289]. Menstruation rather than a set age seems to be enough to make a girl old enough for marriage. Magister Illyrio noting that Daenerys Targaryen ‘has had her blood. She is old enough for the khal’ [I:30]. One marriage which does not seem to fit this pattern is that of the baby heiress Lady Ermesande Hayford to Cersei Lannister’s thirteen-year-old cousin, Tyrek (a match motivated by a wish to obtain the child’s lands) [II:363, 896; III:48]. This appears to be regarded as a full marriage rather than a mere betrothal, despite the bride’s tender age and presumed lack of consummation. Perhaps it is technically a betrothal, or open to disavowal when she reaches majority, though practically and politically, such a disavowal would be extremely unlikely (In the event, Tyrek disappears, presumed dead, so the point is moot).

Marriage may involve two stages – the contract or betrothal, which may be revoked, though it is considered binding in honour, and the final marriage [I:45; II:479]. A royal betrothal or marriage contract is considered void, and vows are cancelled, according to the Faith if the bride’s family are involved in treason against the groom, as is alleged against the Starks by Joffrey and his supporters [II:819].  The marriage ceremony itself, in the Faith, involves the making of vows before witnesses, in the presence of a septon, and symbolic removal of a ‘maiden’s cloak’ (with her father’s sigil or colours) from the woman, and its replacement with the bride’s cloak (featuring her husband’s emblems), demonstrating her move from her father’s protection to that of her husband [III:318, 669]. Consummation is also necessary, and might be preceded by the bawdy ‘bedding’ custom, which functions as confirmation that bride and groom at least had the opportunity and capacity to consummate. There may  also be the exhibition of sheets after the wedding night, as an additional confirmation that the marriage has been consummated.

The people of Westeros adhere to different religions, and marriage rites vary. Generally, there do not seem to be arguments as to whether a marriage conducted according to one rite is regarded as valid by the adherents of other religions. Some may choose to make sure that there will be no problem by holding a double ceremony, in both godswood (for the Old Gods) and sept (for the Seven or New Gods)  [II:474]. There may be problems of ‘conflict of laws’ with regard to more foreign traditions, however. Thus, a Westeosi rite marriage would not be recognised in Meereen – unless Daenerys Targaryen marries Hizdahr according to the rites prevailing in Meereen, they will not be regarded as being lawfully married, so that any children they have will be illegitimate [V:478]. Since Daenerys more or less complies with this, one must conclude that she assumes this ‘foreign’ marriage would be seen as valid in Westeros.

Marriage may be arranged, and strong pressure may be brought to bear, but some form of consent is necessary. Daenerys does not want to marry Drogo, initially, but her brother Viserys orders her that she will. [I:35]. She ‘consents’ to sex (and therefore ‘completes’ the marriage) with Drogo on their wedding night (it is presented in this way, though there is so much mention of fear that one must presume that a low threshold was being employed] [I:103]. Similarly, even a marriage forced upon a vulnerable woman, with the threat of violence and mistreatment, might be regarded as not sufficiently outrageous as to be impossible to maintain Thus, ‘the Bastard of Bolton’ forced Lady Hornwood to say her vows to him in appropriate form, in order to acquire her land, later starving her to death. A maester pronounced that ‘Vows made at swordpoint are not valid’, but it is thought that the Boltons would be unlikely to accept the invalidity of this marriage which brought them valuable lands [II:474]. The wildings’ custom of bride-stealing [World: 571] was not seen as excluding consent. The stealing was, rather, a way of showing stealth and bravery, such as a wilding woman might be thought to admire.

At least in the upper echelons of Westeros society, lords have a role and a responsibility with regard to female tenants. A liege lord has a duty to find a suitable husband for widowed female tenants [II:229]. This right or responsibility may be politically useful. Theon Greyjoy, for example, speaks of making a marriage alliance using his sister, Asha [II:350]. The right may be used vindictively, as when Joffrey and Cersei arrange a marriage between Tyrion and Sansa Stark. Joffrey has this right because Sansa is a royal ward, and her brother – who would otherwise have the right – has been attainted a traitor  [III:317]. The right is not available to those below the rank of lord: thus a castellan cannot make marriage pacts [V:653].

As was the case in medieval Europe, marriages can, on certain, restricted, grounds, be ‘undone’ (which seems to mean that, as with divorce a vinculo matrimonii, it was as if it had never happened). The marriage of Tyrion Lannister and the peasant girl or ‘whore’, Tysha, for example, was ‘undone’ at the behest of his father Tywin, (perhaps on the ground that it had been entered into through deception) [II:581], and a marriage not consummated – such as Tyrion’s marriage to Sansa Stark – can be set aside ‘by the High Septon or a Council of Faith’ [III: 364].

Once married, Westerosi husbands have considerable control over their wives’ person and property. They can chastise an adulterous wife [World: 90]. Again, though, this was not uncontested. Dorne, influenced by the rules of the Rhoynar, did not allow husbands to chastise wives in this way [World: 90] According to a decree from the reign of Gaemon Palehair, ‘husbands who beat their wives should themselves be beaten, irrespective of what the wives had done to warrant such chastisement’ [World: 6916].

Even in mainstream Westeros, there are limits. In particular, the chastising husband was restricted in that he must use ‘a rod no thicker than a thumb’ [World:1313] – an echo of the post-medieval distortion of common law spousal chastisement limitations known as the ‘rule of thumb’. And Queen Rhaenys Targaryen, doing justice in the absence of King Aegon, whilst accepting that ‘the gods make women to be dutiful to their husbands’, so that it was lawful for them to be beaten, decided that the number of blows should be limited to six (representing each of the gods, save the Stranger, who was Death) [World: 1313]. In a case in which a man had beaten his wife to death, she judged that the blows exceeding six had been unlawful, so that the brothers of the dead woman could ‘match those blows upon the husband’ [World: 1313].

It appears that the law in Westeros includes something along the lines of common law coverture, since Daenerys notes (implicitly as a difference’ that ‘in Qarth man and woman each retain their own property after they are wed’’[II:528]. She discovers, however that they also have a ‘custom that on the day of union, a wife may ask a token of love from her husband and the husband from the wife’ – these ‘requests’ not being amenable to denial [ibid.] Also suggesting the husband’s power over property brought to the marriage by the wife is the description of the Boltons using a (forced) marriage as a way of acquiring immediate rights in the wife’s lands [II:474].

 

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

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

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

Part I

George R.R. Martin’s (unfinished) Song of Ice and Fire series, also, as Game of Thrones, a massively successful T.V. series, is set in a quasi-medieval fantasy world. There is also quite a bit of legal content: references to trials, laws, lawmakers. So naturally I have been making notes on the legal or legal-historical ideas present in the series. Because of the incomplete nature of the Song, it is not possible to draw a definitive picture of the prevailing legal system(s), but there are several points of interest, which I will begin to note here. This first part will deal with the legal system(s) seen in Martin’s created world, and the second part will look at substantive law.

 

1. Law-making

Sources of law appear to include custom (which varies according to territory and lordship) and deliberate law-making. Kings of old had not necessarily wished to impose one set of laws on the Seven Kingdoms, King Aegon leaving matters to ‘the vagaries of local tradition and custom’, but King Jaehaerys, his grandson, ‘created the first unified code, so that from the North to the Dornish Marches, the realm shared a single rule of law’ [World:1644]. ‘Top-down’ provision of laws was, thus, possible and accepted. Such laws survive their maker, but may be unmade. Thus, laws of King Maegor had prohibited the Faith from bearing arms, but Cersei suggested ‘undoing’ these three-hundred year old laws,  allowing the ‘Sparrows’ to defend themselves [IV:474]. Similarly, Princess Arianne of Dorne argues that rules barring kingsguards from marriage. made by Aegon the Dragon, could be revoked – ‘what one king does another can undo or change’, backing up this proposition with the argument that Joffrey had changed the rules regarding the Kingsguard, in that they had formerly served for life, but he had dismissed Ser Barristan Selmy [IV:219].

A slightly more participatory process of law-making can be seen in the attempt to fix the rules of succession to the Iron Throne, in the Great Council held in 101 AC [World: 1703], though how binding such determinations were appears to have been contested: certainly, a subsequent king, Viserys I, did not consider himself bound by the rules of that body [World: 1797], though others fought a civil war to enforce it.

Monarchs vary in their enthusiasm for law-making. Daenerys Targaryen has an interventionist instinct. Some of her efforts to change practice with regard to personal freedom will be considered in Part II. She also wished to change the dress code in Meereen, banning the extremely impractical (and status-emphasising) tokar, but is dissuaded from this course of action because it would be extremely unpopular [V:35]. She shows a desire to use law to improve her people’s morals, though this is tinged with awareness that she cannot go too far too fast without endangering her achievements. Of her partial victory with regard to the fighting pits of Meereen (see Part II) she says ‘Perhaps I cannot make my people good,… but I should at least try to make them a little less bad’ [V:693]. She has, it would seem, made a study of the laws prevailing in Meereen, and decided that few of them are good, though she is keen to continue those few good laws from the previous regime which she finds (e.g. the rule that dead arena beasts are to be used for stew for poor] [V:693]).

2. Lands without lawyers?

A striking feature of Westeros is the complete absence of a legal profession: we see no trial lawyers and no professional judges or draftsmen. Although there are individuals who devote themselves to learning – the maesters in Oldtown [World: 6227] – and accepted legal procedures, individuals do not have legal representation, and nor is there any sign of specialised scholars of jurisprudence, though there is mention of what might be a legal historical work: Justice and Injustice in the North: Judgments of Three Stark Lords, by Maester Egbert [World:3852]. Unsurprisingly, given the lack of a legal profession, there does not seem to be anything approaching a ‘writ system’, and legal matters are brought before kings by petition [I:450].

Kings have the right and obligation to pass laws, though some had little enthusiasm for the role. Robert Baratheon complained that ‘Laws are a tedious business’ (though at least he found them preferable to ‘counting coppers’ [I:43]). The king’s second-in-command, the Hand of the King, is involved in drafting laws [I:44]. In the brief reign of Joffrey, the king at times made decrees and the Small Council gave their assent [I:598], though it is unclear whether they were more than a rubber stamp, and whether an un-approved decree would be valid.

Kings on the Iron Throne have an official called the ‘master of laws’ (e.g. Ser Kevan Lannister is noted as master of laws in King Tommen’s small council: [IV:782], and Aegon the Conqueror had a ‘master of laws’ [World: 988]), but these are noble ‘civil servants’ rather than trained jurists, and their duties are unclear. Of the official called the justiciar, we know little (and less), other than that during Cersei’s regency, it is held by Lord Merryweather. [IV:654]. The official called the King’s Justice (Ser Ilyn Payne) is simply an executioner [I:456], with additional charge of the dungeons and gaolers there [IV:444].

 

3. Jurisdiction

Kings on the Iron Throne do justice (‘criminal’ and ‘civil’) though others (particularly the Hand of the King) might do this when the king is unavailable or unwilling [I:44]. Eddard Stark takes a very royalist view of the constitution, stating that ‘all justice flows from the king’ [I:196]. Those aspiring to a royal role are expected to do justice to their people. Daenerys Targaryen devotes considerable time to providing decisions on petitions – including legal matters – brought to her by the people of Meereen [V:214]. In her view, ‘Justice … [is] what kings are for.’[III:310].

The usual legal business dealt with by Ned Stark as Hand is described as ‘hearing petitions, settling disputes between rival holdfasts, and adjudicating the placement of boundary stones’, but he also heard complaints concerning a knight’s attacks on various holdfasts] [I:450]. The Hand’s judgments might be overruled by the king, thus when Tywin Lannister adjudicated a border dispute between two houses over a mill, Aerys II overruled him and awarded the property to the side which lost at first instance [World: 3358].

Lords appear to have jurisdiction both as lords, with respect to their own rights, and as representatives of royal justice. For example, we see Lord Randyll Tarly sitting in judgment in the fishmarket at Maidenpool, presumably as royal representative, with Lord Mooton, the territorial lord [IV:232]. Some claim rights of summary execution, as can be seen in Roose Bolton’s hanging of a miller who married without Bolton’s permission or knowledge [V:429].

An exchange between Maester Pycelle and Ned Stark shows disagreement as to the relationship between the jurisdiction of royal and lordly authorities. A complaint of the rampages of Ser Gregor Clegane having been made to the Iron Throne, Pycelle says that the appropriate recipient of the complaint is not the king but Clegane’s liege lord: ‘These crimes are no concern of the throne. Let them seek Lord Tywin’s justice’. Ned Stark sees things differently, however, stating that ‘It is all the King’’s justice …North, south, east or west, all we do we do in Robert’s name.’[I:452].

There were some disputes about jurisdictional issues between the Iron Throne and the Faith in the time of King Jaehaerys, but these were brought to an end by the king swearing that the Iron Throne would always defend the Faith [World: 1666]. It is not clear, however, exactly how the two jurisdictions were seen to relate thereafter.The High Septon during Cersei’s regency says that Jaehaerys the Conciliator ‘deprived [the Faith] of the scales of judgment’ [IV:738]. He claims jurisdiction over adultery and sexual offences, and homicide (or deicide – see Part II) of the previous High Septon [IV:731], and treason [IV:743], and accepts that the Faith does not have the right to impose capital punishment [IV:740, 743]. Where there is overlapping jurisdiction, the accused seems to be able to elect the forum. Thus, Cersei is afforded the option of letting the Faith sit in judgment on her or having a trial by battle according to royal justice [V:848].

Prior to the Conquest, individual territories had their own processes of law-making and administration, aspects of which continued to echo during the post-Conquest period, though there is little information on this. We know, for example, that in the past, each of the Iron Islands had a ‘rock king’ who dispensed justice, made laws and settled disputes [World: 5096], and that decrees altering the law were made in Dorne [World: 6916]. As will be explored in Part II, at least some territories are allowed to retain their laws or customs in some particular areas of law.

Some groups purport to try criminals, though their right so to do would no doubt be disputed by the Iron Throne. For example, Beric Dondarrion’s brotherhood try the Hound, Sandor Clegane, for crimes including murder [III: 384 ff], and had tried the Brave Companions/Bloody Mummers for various killings and rapes, and Septon Utt for killing boys he molested [III:441].

Some areas do not accept the idea of law at all (or are thought not to do so). Samwell Tarly notes that ‘There are no laws beyond the Wall’ [III:368] and is horrified that Craster is said to ‘obey no laws but those he makes himself’ [II:323].  Jon is not surprised that the people of Westeros consider the wildings ‘scarcely human’, explicitly because of their lack of laws. He notes that ‘They have no laws, no honor, not even simple decency. They steal endlessly from each other, breed like beasts, prefer rape to marriage, and fill the world with baseborn children’ , but he grew fond of them, and even respected some of them and some of their views [III:176]. The wildings saw their lack of respect for authority and law as a positive thing, and contrasted themselves – the ‘free folk’ with the ‘kneelers’ of Westeros.

 

4. Form of trial

Litigation is not the only method of dealing with legal disputes: mediation is mentioned, in a property case (dispute over possession of a cavern), in the Dawn Age [World: 226].  Also, lords had the power to sentence without trial those caught red-handed, as in the case of Will, a poacher who had taken the black after being caught by Mallister freeriders skinning a deer in the Mallisters’ own woods, rather than having his hand removed [I:2]. Nevertheless, court proceedings are noted on several occasions, allowing us to see something of ideas of procedure and proof in different jurisdictions.

There are accounts of lords doing justice. For example, we see Lord Randyll Tarly sitting in judgment in the fishmarket at Maidenpool, with Lord Mooton, the territorial lord [IV:232]. He is described sitting on a specially erected platform, near a long gallows, with ropes at the ready, which could accommodate twenty men. Mutilatory and capital sentences are passed and carried out immediately, and some corpses are left hanging for some time [IV:232]. Offences included theft from a sept, food adulteration, passing on sexually transmitted diseases and assault with a knife [IV:233]. The cases are to be tried over more than one day, and those accused of crimes are kept in a dungeon pending trial [ibid.]

There is a form of ‘ecclesiastical court’, at least for those who follow ‘the Faith’ of the seven gods. At times, there is a jurisdictional overlap between royal justice and ‘ecclesiastical’ justice, as where Cersei and Margaery are accused of offences which are contrary to secular and religious law (sexual treason, and, in Cersei’s case, homicide of sacred individuals – the High Septon and the King). Cersei has the option of letting the Faith sit in judgment on her or having a (secular) trial by battle. She decides to opt for the latter, as she has few friends among the Faith.[V:848]. Margaery, however, chooses to be tried by the Faith.

‘Royal’ trials are held in public. At least in treason trials, there are three judges, and there is some religious participation – so that, in Tyrion’s trial for the regicide poisoning of Joffrey, the proceedings commence with a prayer by the High Septon, asking the Father to guide them to justice [III:740]. The accused is asked whether he is guilty [III:740]. The judges ask questions of the accused. [III:749]. Witnesses for the prosecution were heard first, then those for the defence, if available. The accused was not to speak without leave of the court, and does not seem to have been able to cross-examine witnesses against him [III:741].Trial by battle is a possible mode of proof, at the election of the accused [and Tyrion selects this proof – III:791. The accused may (or must? this is not clear) have a champion rather than fighting in person, thus in the case concerning Tyrion’s alleged killing of Joffrey, Oberyn of Dorne fights for him [III:791]. A champion is also assigned to fight ‘for the deceased’ – in this case, Gregor Clegane fights ‘for Joffrey’ [III 791] (demonstrating, incidentally, that these proceedings are understood as more of an appeal or private prosecution than a ‘state’ prosecution). Tyrion had previously insisted on trial by combat, ‘judgment by the gods’, again with a champion, when accused of the attempted murder of Brandon Stark [I:408]. Certain individuals are constrained in their choice of champion. Queens must be defended by a sworn knight of the Kingsguard: which may be inconvenient {IV:744].

Joffrey insists on a trial by combat, to the death, in a land dispute between two knights (the fight being ordered to be in n person rather than with champions. Such a mode of trial in a land case seems to be illegitimate [I:720] – though it is an echo of the early use of trial by battle in the writ of right in common law.

Ideas of ‘due process’ may be seen in Tyrion’s objection to being in the Eyrie without trial, and insisted on a trial according to the king’s justice [I:406]. We see little of ‘pre-trial procedure’, or detection, though torture is not entirely unknown. Thus, after terrorist murders in Meereen, Daenerys approves ‘sharp’ questioning of suspects (i.e. torture) [V:149]. Cersei Lannister goes further, and has her sadistic assistant, torture ‘The Blue Bard’ to obtain a (false) confession of having had sex with Queen Margaery [IV:656], also lying and saying that if the confession is made, the bard will be allowed to take the black.

Less obviously showing ideas of due process is the fact that not all ‘royal’ judgments were preceded by a trial. Thus, Ned Stark sentences Gregor Clegane to death for deaths, rapes and destruction on the basis of accusations, with no trial, also stripping him of rank, titles, lands, incomes and holdings [I:453]. Likewise questionable from this perspective is the fact that there does not seem to be an age-qualification for judges: thus, it is suggested that Tyrion should be tried before Robert Arryn, a pettish and unstable young boy [I:408]. Nor is there, apparently, an objection to a judge on the ground that he is related to the accused, for, when Tyrion is tried for the killing of Joffrey by poison, the judges are Oberyn of Dorne, Mace Tyrell and Tyrion’s own father, Tywin Lannister [III:735].

At a lower level, trials may be brief or non-existent. In the judicial session of Lord Randyll Tarly, at Maidenpool [IV:232], trials or disposals are very brief. Some, such as a prostitute accused of spreading ‘the pox’ seem simply to be accusations, without argument. In other cases, the lord’s common sense or feeling for the guilt or innocence of those before him seems to be the decisive factor [see IV:233, case of the sailor and archer]

‘Ecclesiastical’ courts, in the Faith, use a court of seven judges. There are three women, representing the maiden, mother and crone, and presumably four men representing the other gods or aspects of God [IV:743]. The Faith may torture potential witnesses, e.g. by whipping Osney Kettleblack to ‘find the truth’ of accusations of sexual misconduct against Queen Margaery when the High Septon was suspicious of his (made-up) confession of involvement [IV:740]. It may also attempt to coerce a confession from a suspect by harsh imprisonment, as in the case of Queen Cersei, accused of adultery, fornication and arranging the murder of a High Septon: she was taken, imprisoned in the sept, and ‘encouraged to confess by hourly visits of a septa’ [IV:743].

Even some outside the law employ a degree of formal procedure. Beric Dondarrion demonstrates that he is not a bandit and is not engaged in lynching by his insistence on trying those accused of crimes, rather than simply killing them [III:190]. He and his brotherhood try the Hound, Sandor Clegane, for crimes including murder [III: 384 ff]. The trial has elements of informality, with several people, including a young girl and an old woman, bringing accusations and the Hound answering back, defending himself. [III:385, 386]. Beric will not make a summary judgment, saying that ‘You stand accused of murder, but no one here knows the truth or falsehood of the charge, so it is not for us to judge you’. He says that judgment must be by ‘the Lord of Light’ and so there must be a trial by battle.’ [III:386]. In this case, however, there is no champion – the Hound fights in person (unlike Tyrion, he is well-equipped to do so]. Beric is his opponent. The combat is unarmoured, the Hound being allowed his shield and a sword, while Beric has a shield and a flaming sword. The priest Thoros leads those present in prayer to the Lord of Light before the battle, asking him ‘to show the truth or falseness of this man’ [III:388]. When the Hound wins, the result is respected, and he is allowed to go.

5. Kings, queens and the law

There is no Magna Carta or other document or principle explicitly holding monarchs to the law. Varys notes that one view of kingly power is that it derives from the law, but that there are other views – that it comes from the gods, or from the (possibly malleable) belief of the people [II:119]. It is certainly the case that some monarchs flouted the rules which applied to others. As Catelyn Stark notes in the context of incest, an offence ‘hated by gods and men’, ‘Like their dragons, the Targaryens answered to neither gods nor men’ [II:451]. It is arguable that this breaking of the rules enhanced the reputation of house Targaryen as special, set apart for kingship or even semi-divine. Jaime Lannister dreams of wedding Cersei and marrying Joffrey to Myrcella, showing everyone that  ‘the Lannisters are above their laws, like gods and Targaryens’ [III:236]. Less image-enhancing, at least after his demise, was the conduct of ‘Mad’ Aerys Targaryen who ignored all rules of due process, killing and torturing many subjects.

Conclusion (for now)

The Seven Kingdoms and the Iron Throne clearly demonstrate the existence of ideas of law and justice, though there is little explicit discussion of the content of these ideas. A difference is made by Ned Stark, as Hand, between justice and vengeance [I:453], and, as we have seen, there are some safeguards for accused persons, though torture is seen, and there are cases of condemnation without trial. Daenerys Targaryen is particularly keen to ‘do justice’, and examines her own conduct to ensure that it has been just – for example, questioning herself about the display of punishment and exhibition of the dead in Meereen after it is captured, comparing herself to the slavers of Astapor, but concluding that , unlike them, she had imposed punishment on those who ‘deserved it’, and telling herself that ‘Harsh justice is still justice.’ [III:806]. Stannis Baratheon takes a less questioning approach, content to take a literal and strict view of law: His harsh and unyielding view of law is shown in his statement that ‘Laws should be made of iron, not of pudding’ [V:54] and his treatment of Davos (later Ser Davos Seaworth)- mutilating his hand for smuggling despite ‘the Onion Knight’ having saved his life [II:11.]. His brother, Robert I Baratheon, however, had been known for mercy contrary to the strict letter of the law [I:466]. The delightful Joffrey portrays mercy as a feminine weakness, and vows that during his reign, the full punishment would always be exacted (at least for treason) [I:702]. This echoes the religious idea of the faith that justice is for the Father and mercy for the Mother {III:291].

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

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

Crowns, wreaths and warts: Oliver Cromwell in the ‘King’s Bench’ Rolls

A future project, now that I have looked at most of the medieval and Tudor KB and CP rolls initial membranes, is an examination of the rolls of the ‘Interregnum’. From the photographs which are available on the ever-useful  AALT (http://aalt.law.uh.edu/ ), it is clear that there is much of interest, particularly in the rolls of the Upper Bench.
The clerks seem to have been a little unsure how to alter the format of the initial membrane to reflect the new political settlement. For more than 100 years, the first membrane of King’s Bench rolls (KB 27) had featured a picture of the monarch(s), a crown and a form of words indicating the regnal year. How should that be altered once there was no longer a king or queen?
As far as the crown was concerned, old habits clearly died hard, and it featured, as usual, over the P of ‘Placita’ (Pleas) in 1653 (KB 27/1750 m.1 – from Hillary term, and thus before Cromwell became Lord Protector).  Once he had become Protector, a wreath replaced the crown in some rolls ( KB 27/1760 and 1763), suggesting a view of Cromwell as a leader in the classical republican tradition,  but, interestingly, the crown is back from  KB 27/1764 onwards. There is neither crown nor wreath in KB 27/1784, (1756) and this becomes the new norm, even during 1657, when there were moves to have him crowned.  The rolls do not generally go as far as including a portrait of Cromwell in the P. (though there is one rather unflattering, crowned, sketch of the Protector in the P in 1656 (KB 27/1789 m.1) -iIf this was not, in fact, sketched in at some point after the Restoration, then the ‘artist’ was taking something of a risk). The to-ings and fro-ings with regard to inclusion (or not) of a crown and the general omission of depictions of Cromwell  are interesting comments on the perceived role of Cromwell in the evolving polity.

P is for profile: Henry VIII in the rolls of the Common Pleas

One of the great benefits of the massive scanning project undertaken for the Anglo-American Legal Tradition website is that it is now considerably easier than before to compare a number of different manuscripts. Recently, I have found it particularly interesting to compare the use made of the initial letter on plea rolls (a ‘P’ for ‘Placita’). The King’s Bench rolls are the more decorative – more on them later – but there are also some interesting images in the Common Pleas rolls.

Things start off under Henry VIII much as they had ended under Henry VII, in a not terribly interesting fashion, with rolls until 1521 being rather workaday manuscripts, without illustration (though ‘titles’ are emphasised with some decorative lettering, and a couple have religious inscriptions). Thereafter begins the Common Pleas tradition of portraying Henry VIII in profile, looking away from the lettering, to the reader’s left. Some of these images are rather sketchy,e.g. CP 40/1031 m.1;  but by the late 1520s, they are more finished

In CP 40/1032A m.1, the king is spewing foliage in a rather ‘green man’ depiction – certainly something to consider alongside the many discussions of the presence of such images in ecclesiastical contexts. In CP 40/1035, he is in ermine, reminiscent of the standard King’s Bench regal image. In CP 40/1055, CP 40/1057, CP 40/1063, Henry is clothed in courtly fashion, with a hat. By 1530, however, the conventional Common Pleas portrait of (what I assume is) him is more martial. He appears to be wearing decorative Greenwich-style armour and a helmet,  open to show his face and beard.  The facial expression changes, as does the colour of the beard and the style of the moustache, but this is clearly a standardised image, present from 1530 to the end of the reign.

Obviously, it is difficult to draw conclusions as to the ‘meaning’ of this portrait – all the more so because the artist(s)  is or are unknown, and the rolls were not intended for the king’s entertainment, nor for the general public’s consumption, so that the purpose of such portraiture is somewhat problematic. Nevertheless, it is interesting that Henry VIII was portrayed in this ‘heroic’, martial (and lean) fashion in such a large number of manuscripts from 1530 until the end of his reign.  The contrast with the ‘regal’ KB portraits, the portly coin images of the later years of his reign and, of course, the famous Holbein portrait, is noteworthy.

It should also be noted that the armoured man image persists throughout the Common Pleas plea rolls of Edward VI, with the exception of his very last roll. This could be taken as evidence that it is not supposed to be Henry at all, but it seems to me more likely that the portrait of Henry was included during Edward’s minority, because the king’s father still overshadowed his heir. The image disappears from the rolls with the accession of Mary.

Mary I Biography, iconography

Just finished reading Anna Whitelock’s Mary Tudor: England’s first queen. A very well written book, walking the very difficult tightrope between academia and popularity. Still find it very hard to get to grips with Mary I as a person, but this probably does as much as can be done in the way of humanising her. A couple of points to think about in terms of legal history, in terms of constitutional law in the (novel) situation of a queen regnant, and then the ramifications of a the doctrine of unity of persons in the context of a married queen.

Recently, I have been studying plea rolls for illustrations (serious and humorous). My ‘patch’ is the medieval rolls, but I have enjoyed having a look at some of the depictions of Mary (alone and with Philip) on the first membrane of legal rolls. These range from the cartoonish (CP 40/1170 m.1 – cartoonish profile) to the lavish, coloured and gold-blinged (see, e.g. KB 27/1172 – also featuring Philip with a rather phallic symbolish sword). Most of the KB 27 images are standardised, those at the beginning of the reign bearing close resemblance to those of Edward VI. Like her brother, who, until  his very last roll, (KB 27/1167 m.1) was not depicted with a state sword, Mary generally holds the less masculine orb and sceptre.Her first roll, KB 27/1168 (1553), however, shows her with a sword. Perhaps this appeared fitting, given her then-recent heroic efforts to gain her crown. She also has a sword in KB 27/1188 – her very last roll, in 1558, in which, intriguingly, Philip is not depicted.  On all other occasions after their marriage, Philip has the sword.

One can imagine that a lot of thought went into just how to portray Mary and her husband without giving offence to either in terms of precedence. At first, Philip is on the right, the dominant side, as on the coins which were circulated,  though positions are switched from KB 27/1180 m.1 (Michaelmas 1556) onwards – an interesting change which it is tempting to tie to an abandonment of hope for an heir and Philip’s absence from his wife (note though that his reappearance in 1557 did not change the positions).  The spouses are usually shown looking at each other, though never very happily. Mary, in fact, comes closest to looking happy in the triumphant first membrane of KB 27/1168 (1553) – which has a beautiful colour picture of her with angels and a dove.

Those responsible for decorating the Marian KB 27 rolls show none of the medieval humour – we look in vain for grotesques and chimeras. There is a touch of subversive fun on some Common Pleas rolls – e.g. CP 40/1170 m.1 has a cartoon profile of the queen, and there is a splendid demonic creature on CP 40/1174 m.1, but, generally, it looks as if the mood of the times was not conducive to visual wit and humour.

 

 

 

Richard III – usurper’s law

All medievalists must be interested in the confirmation that Richard III’s body has at last been found – http://www.guardian.co.uk/science/2013/feb/04/richard-iii-dna-bones-king. Ric. III is a divisive and fascinating figure – and the fact that the bones in question do seem to suggest some degree of disability or distortion will no doubt lead to any number of new or reheated debates. But what about Ric. III and legal history? What are his major claims to legal historical fame (aside from the usurping and probable bumping off of his nephews?

Well, he did show a bit of an interest in technical legal matters. His first legislation (Statutes of the Realm II, 477) dealt with secret feoffments, and he also provided for bail in cases of felony (SR II, 478), and attempted to stop premature forfeiture of goods before conviction. He made provision for the powers of justices of the peace and the finding of sufficient jurors, for the commercial jurisdiction of ‘pie powder’ courts, the procedure for transferring land by ‘fine’,  as well as the detailed and (to all but the economic historian) tedious regulation of different types of cloth, their size and properties,rules about bowstaves and malmsey wine, and the depressingly still-with-us populist anti-foreigner laws. So quite a lot of legislation for such a short reign, and much of it designed to show the king’s strength and involvement in doing justice to his people.

His plea rolls have been put on the internet by the excellent AALT project. They show some attractive iconography, with the symbol of the boar (see CP 40/ 885B m,1) and the York rose (see CP 40/886 m.1, CP 40/888 m.1; CP 40/890 m.1) appearing on common pleas rolls.

There is certainly room for a study of Richard III and his relationship with law – comparing his dubious royal legitimacy with his wish to be seen to uphold the law.

For a poem on the discovery, see

http://poetry-24.blogspot.co.uk/

http://poetry-24.blogspot.co.uk/2013/02/raising-white-rose.html