Tag Archives: legal history

Life-Long Learning in Legal History

Yesterday, I became aware, rather belatedly, of a woman who edited some volumes for the Selden Society in the 1930s and -40s, the two Select Cases in the Exchequer Chamber volumes (vol 51 and vol 64). The name long familiar from catalogue searches and bibliographies, ‘M. Hemmant Ph.D.’, was, in fact Mary Hemmant, a history graduate, sometime suffragist (not, she would be keen, I am sure, to point out, a ‘suffragette’) and (amongst other things), judge of dog shows (specialising in Irish setters). I had assumed that M. Hemmant was a man, as most of the Selden Society notables were, but there she was, hiding behind an initial.[i]

A little light investigation gave me a few facts about our subject, and a few things to observe.

Mary Hemmant was born into a wealthy family. Her father, William Hemmant, had made his fortune in Australia, then served there as a politician, before returning to Britain and settling down in a very large house in Kent, named after his Australian constituency, Bulimba. The family was not ensconced in ‘Bulimba’ at the time of Mary’s birth, however: she was born in Ealing, London, in 1879.

Of her early years, I have found very little. Easily accessible records and accounts suggest that she lived the life of a privileged, though socially engaged, woman. Her good works included decoration of churches and work with the Sevenoaks Lay Association.[ii] Mary was an active member of the ‘non-militant’ pro-women’s-suffrage organisation, the NUWSS, taking charge of its Sevenoaks branch, and engaging in a lot of pro-suffrage writing of letters to newspapers.[iii] She was not a Christabel Pankhurst type, though, and was one of those signing Sevenoaks NUWSS letter deploring militant methods of WSPU in March 1912.[iv] Quite politely, she engaged with, and disagreed with, anti-suffrage arguments.[v] She bred Irish setters and judged other people’s Irish setters in competitions. [vi] Her social status clearly made her the sort of person who merited a mention in the papers, when she attended a wedding or a funeral.[vii] Apparently she was a very good tennis player, [viii] and she drove a car, from 1915 to 1964 (when she got in trouble for bad driving and gave it up for good, aged 86).[ix] She lived until 1971, as her death at 93 in a home in Ticehurst, and cremation, were recorded in a local Sevenoaks paper in that year. She was still listed as ‘Miss Mary Hemmant’ at this point, and her address was given as 8 Bradbourne Park Road, Sevenoaks.[x]

But how does the legal history writing fit into this quiet, privileged life? I was interested to see that Mary Hemmant had had a rather unusual educational trajectory, only taking up the study of history at a relatively late stage in life. She graduated with a BA in History as a University of London external student (with a second class degree) in December, 1912 – so, in her 30s, by the look of it.[xi] A secondary source tells me that she studied at the Maria Grey Training College at some point. She clearly did gain her Ph.D. in 1929 (so, around 50), at University College London, on the subject of ‘The Exchequer Chamber, being ‘the assembly of all the judges of England’.[xii] This was the topic on which she would write her Selden Society volumes in the 1930s and 1940s (in her 50s and 60s). I speculate that her family connections with an eminent lawyer, Lord Atkin,[xiii] who was president of the Selden Society in 1933, might also have encouraged her in that direction. Most of us do not have her privilege, but it is a somewhat heartening story of serious application to something very challenging at a later stage in life.

Only somewhat heartening, however, since the reception of Mary Hemmant’s work does not suggest that even this well-connected and well-off woman managed to obtain unalloyed respect from the legal history notables of the day. I found this quite telling, in terms of the treatment of ‘outsiders’ by the legal history ‘boys’ club’ of the early-to-mid-twentieth century.

It would probably not have seemed too odd to her, given that she (presumably) chose to label herself as ‘M. Hemmant’, rather than ‘Mary Hemmant’, but several of the reviews of her volumes are studiedly un-gendered. Generally, they do her the courtesy of calling her ‘Dr Hemmant’, though not always: to Samuel E. Thorne, she is ‘Miss Hemmant’ throughout.[xiv] T.F.T. Plucknett is generally positive, though pointing out some mistakes. [xv] Positive/bland reviews come from Erwin F. Meyer and Margaret Hastings.[xvi] The general view seems to be that the later volume is not up to the standard of the earlier one, but of some value (S.B. Chrimes talks of her ‘highly competent scholarship’).[xvii] An outlier in its ferocity, and surely one which must have hurt – is Samuel E. Thorne’s review of the second volume. He damns her as being ‘neither a lawyer, nor at home among medieval law reports’ (the first of which might seem a bit harsh, when we consider that she would have had considerable difficulty in becoming a lawyer prior to 1919, at which point she was forty …).[xviii] While he is not wrong in his corrections, his tone is not exactly welcoming to those trying to work on legal history without having been through the training so much more easily available to men than to women.

There we are then, that is a brief introduction to M. Hemmant Ph.D. There are some further papers relevant to her story which it would be good to see, in order to get a fuller picture of her interactions with the Selden Society, so that’s one for the backburner pile. And interim lessons for today? Well, the straightforward gender bars no longer persist, so to that extent this is a story of the past, but the practical difficulties of acquiring the necessary skills, confidence and contacts to be a successful and accepted legal historian remain significant, and certainly are still considerably more challenging to some groups than to others. Work to be done.

19/11/2024

[i] See the similar mistake I made with N. Dermott Harding.

[ii] Sevenoaks Chronicle and Kentish Advertiser, Friday 21^st January, 1910; Friday 27^th December, 1912.

[iii] See this account.

[iv] SCKA, Friday 8^th March, 1912.

[v] SCKA Friday 19^th May, 1913.

[vi] SCKA, Friday 31^st July, 1971; Gentlewoman, Saturday 4^th June, 1921, p. 50; Buckinghamshire Examiner, Friday 22^nd June,1928; Mid Sussex Times, Tuesday 9^th July, 1935, p. 3.

[vii] See, e.g., See, e.g. Times, Monday 19^th December, 1932.

[viii] SCKA, Friday 31^st July, 1971.

[ix] Tonbridge Free Press, Friday 9^th October, 1964, p. 9.

[x] SCKA, Friday 31^st July, 1971.

[xi] Times, Saturday 7^th December, 1912, ‘University Intelligence’. (I notice that a certain Helena F. Normanton was listed in the same place, having done a bit better, and earned a first class degree in History).

[xii] See: Successes, setbacks and stories of the unexpected from the IHR’s Class of 1921 – On History Medieval England | British History Online

[xiii] For contact with Lord Atkin, see, e.g., Times, 2^nd March, 1939.

[xiv] S.E. Thorne, Yale LJ 58 (1948-9) 821-4.

[xv] EHR 50 (1935) 139-40.

[xvi] Speculum 9(1934) 334-6; Speculum 24 (1949) 623-6.

[xvii] EHR 64 (1949) 372-4

[xviii] S.E. Thorne, Yale LJ 58 (1948-9) 821-4.

Of priors and precedent: tradition and truth in Land Law

And this is where I have got with the paper on The Prior’s Case for the SLS Legal History section. This may find its way into a ‘proper’ publication at some point, but probably not in this form … anyway, for anyone who stumbles upon it and fancies a bit of medieval-to-modern musing, here you go …

Of priors and precedent: tradition and truth in Land Law

DRAFT VERSION

One of the oldest cases still referred to in modern legal writing, and in litigation, is a case from 1368: Y.B. Hil. 42 Edw. III f. 3 pl. 14.[1] This was introduced to me, as a second-year undergraduate studying Land Law, as The Prior’s Case, though it is sometimes known as Lawrence Pakenham’s Case, and, occasionally, Prior’s Case or The Prior of Packenham’s Case). It has a place in the Land Law canon in the area of freehold covenants, and, specifically, that of the running of the benefit of covenants. A recent use of it, in the judgment of Nugee LJ in Bath Rugby v Greenwood [2021] EWCA Civ 1927, shows the standard account of the case in legal practice.[2] Nugee LJ referred to The Prior’s Case as ‘example of noticeable antiquity’, and summarised it in the following way:

The … prior of a convent had covenanted that he and his convent would sing all week in the chapel of a manor for the lords of the manor. … a successor in title to the manor was able to enforce the covenant: “for the covenant is to do a thing which is annexed to the chapel, which is within the manor, and so annexed to the manor”, as it is there said.[3]

The legal rule for which this case is often said to be authority, then, is that the benefit of covenants may pass or ‘run’, via annexation to land or property rights.[4] It may well be that the area of freehold covenants does not command great enthusiasm outside black-letter legal scholarship and practice, but this use of a medieval source in modern legal practice (and writing) does, however, have implications beyond covenants, and beyond Land Law doctrine. To put it bluntly, The Prior’s Case does not support the ‘rule’ for which it is routinely cited, this has been known for a considerable period of time, but the inaccuracy persists. That it does persist is telling, in terms of attitudes and methods of lawyers with regard to history and older legal sources, and should be brought into the discussion of uses of history in legal contexts which has developed in the last few decades, alongside the more common focus on the validity of particular legal propositions or historical facts, on constitutional matters or the interpretation of legislation.[5] A recent book has argued that there is a need for Land Law students and practitioners in particular to be aware of older doctrine in that area.[6] Consideration of The Prior’s Case and its treatment indicates that what might be thought of as the evidential side of the legal use of history – the way in which modern lawyers and legal scholars handle the documentary evidence of law’s own past – is also an issue which could and should be taken more seriously by those incorporating historical legal materials into their arguments about modern law.

The problem with the standard account

The Prior’s Case, and specifically Y.B. Hil. 42 Edw. III fo. 3 pl. 14, is often cited as authority for a rule it does not support. In fact, it is not possible to say that it stands for any particular rule, since there is no evidence of a clear decision in the case. This lack of an outcome is apparent from Y.B. Hil. 42 Edw. III fo. 3 pl. 14 itself, from the related plea roll,[7] from translations of the report and roll entry which have long been available, and it has long been noted in published work by more historically-sensitive or knowledgeable legal commentators. The same sources also show that, while there seems to have been some argument for something along the lines of the running of the benefit of covenants with land or rights in land, this was not first choice of argument of the claimant in The Prior’s Case, but sat alongside arguments focusing on the transmission of a right to the claimant as heir to the original covenantee, and those based on something like prescription of the right. Furthermore, an additional source in a medieval cartulary, which I have examined, suggests that the real facts behind the case involved a situation even less easily comparable to a modern freehold covenant scenario than the Year Book report has seemed to suggest to later lawyers.

There is no room for argument about the lack of a conclusion in the Year Book. Y.B. Hil. 42 Edw. III fo. 3 pl. 14 states that the case was adjourned. Although this source is in Law French with some Latin (the statement about adjournment being in Latin), and no modern English lawyer should be expected to be familiar with the ancient languages of the common law, it is not unreasonable to criticise inaccuracy here, since anyone going to look at the source cited could see that it is not in English, and seek a translation; and published translations, which make it quite clear that the case was adjourned, are available.[8] It seems difficult not to conclude that: (a) there has been a history of inaccurate citation in this area; and (b) some lawyers are content to cite cases they have not understood (or, perhaps, read at all).

It is also worthy of note that secondary work has long since picked up the lack of a conclusion in this case, and that an honourable minority of modern writers have seen this. There was discussion and debate about it on both sides of the Atlantic in the nineteenth century. It is clear that Sugden, for example, actually did go back to the Year Book, looked at the report so often cited, and noted what it did and did not say in this context.[9] The plea roll entry was found and set out, translated, in an article by G.E. Woodbine in the 1920s.[10] Considerable information was thus available to those who consulted academic literature. If this knowledge faded into obscurity, at least in England, A.W.B. Simpson’s 1975 history of ‘the law of contract’ again amplified the point about a lack of clarity as to what was actually decided in The Prior’s Case.[11] This was picked up in the 2000 edition of ‘Megarry and Wade’,[12] and so brought within the corpus of material one might reasonably expect to be consulted by those with a serious, scholarly, interest in Land Law. It does not, however, seem to have ended the simplistic accounts of the case in court or practitioner text in England: a matter which some of us might take to be a sad indication of the limited ‘impact’ on legal practice of even leading academic authors.

I will return to the matter of inaccuracy with regard to the outcome of the case shortly, but will, first, note one further issue which speaks of citation without reading, and that concerns the name given to the case. As mentioned above, there is variation in the names assigned to Y.B. Hil. 42 Edw. III fo. 3 pl. 14. Such variation is neither unusual nor necessarily objectionable. The Vulgate Year Book which is cited does not give the case a name, and does not fully name the parties. There is, in fact, an ‘official source’ which does give the parties’ names: the plea roll, which, as mentioned, has long been known to legal historians.[13] This shows that the claimant was a certain Lawrence Pabenham and the defendant(s) the prior (and convent) of Canon’s Ashby, Northamptonshire.[14] If one were confined to using the Year Book source cited alone, one would not have that information, of course. Having read only that source, whether in original, or in translation, one might well call the case after one of the parties. Since a small error crept into the Year Book, misreading a B as a K and calling the claimant Lawrence Pakenham, rather than Pabenham, it might be called ‘Laurence Pakenham’s Case’ (which would be more conventional) or ‘The Prior’s Case’. ‘The Prior of Packenham’s Case’, [15] however, muddles the parties in a way which is hard to imagine would be done by anybody who had skimmed Y.B. Hil. 42 Edw. III fo. 3 pl. 14 or a translation of it.[16] Leaving aside the fact that Pa(c)kenham, in Suffolk, never actually had a priory,[17] a cursory glance at the Year Book report cited would demonstrate that it neither assigns the defendant in this case that title nor says he was prior of such a priory. The chapel in which the singing was desired by the claimant was said to be in the claimant’s manor ‘of K’, so there is no reason to deduce from that the fact that the prior was ‘Prior of Pa[c]kenham’, and nor must it be supposed that the prior in this case had a priory located in the place from which the surname of the claimant was derived. This does seem to be a matter of some carelessness with the cited source.

Looking only at the source which is usually cited, then, we can conclude that there is a lack of fit between what the evidence says and the account which is given of it in some modern legal argument. If we go beyond that single source, however, as would be standard practice for the legal historian, and as Woodbine did, almost a century ago, the discrepancy between orthodox account and the facts of the medieval dispute is reinforced, and, indeed, becomes starker. The plea roll backs up the Year Book account of adjournment,[18] and of the alternative arguments to enforceability of the covenant made for the claimant, based on claims of heirship and prescription.[19] We learn that the problem with his claim ‘as heir’ was that another living person had a better claim to be the covenantee’s heir: a minor called Margaret, who was descended from the covenantee via a senior branch to that from which Lawrence sprang.[20] In addition, both the plea roll and also an additional source give some further information about the underlying ‘deal’ for the singing of divine service, which serves to take it further away from the modern ‘running of the benefit of freehold covenants’ situation, with which it tends to be connected. Lawrence’s case, as set out in the plea roll, is based on an agreement, made by indenture in 1229-30, between his great grandfather, Hugh, and the then prior and convent of Canons Ashby. This agreement provided for singing at the chapel of Hinwick (Bedfordshire) three times per week, in perpetuity. Lawrence claimed that, though the obligation had been performed for almost a century, it had not been done for twenty years: he had not been able to get the prior and convent to keep to their agreement, and he claimed 40 l damages for this. A copy of a composition document in the cartulary of Canons Ashby appears to add another fact: this was not a unilateral undertaking, or full exchange for a grant of land: Hugh and heirs had undertaken to give the canons eight shillings a year.[21] The inclusion of a payment from Hugh and his heirs heightens the sense of ‘contractual’/exchange, or perhaps personal obligation, over an idea of modern-style ‘annexation to land’ in this arrangement. To a legal historian, it is a reminder of the breadth of the fact-scenarios to which actions of covenant might conceivably be thought relevant at this time, going well beyond those anchored to land, and also of the involved and dynamic story of the development of writs and thinking in this area of promises or bargains with regard to the performance of divine services, which might be framed in a number of different ways.[22] In short, although Lawrence Pabenham’s action was made within the framework of the action of covenant, that really does not make the case a clear authority on modern freehold covenants, considered in the Land Law context. The word ‘covenant’ may be something of a ‘false friend’ here, and this appears to intensify the sense that reference in modern legal practice and writing to The Prior’s Case is less than helpful in this context. I am not suggesting that it would be appropriate to expect modern lawyers to chase down plea rolls or cartularies, but the additional facts do reinforce the point that this case was not decisive on the benefit of covenants in the modern sense running with land.

Law v. history: historical hearsay and unreliable evidence

Some of the most prominent recent work on misuse of medieval legal sources has been in the area of abortion rights, a much more controversial area than freehold covenants.[23] There is a lot less heat in discussions of the running of the benefit of covenants: we might debate the merits of a system of private property in land, but if we have such a system, the idea that the benefit of covenants might run is relatively sensible, and unlikely to bring people out on to the street. The lack of political heat in the area, however, makes it, in many ways, a good place from which to start a consideration of the issue of the (mis)use of history in law, free from possible accusations of instrumentalism.

As far as the practical workings of the common law are concerned, it probably does not really matter that one of the sources cited for a rule about the running of the benefit of freehold covenants may be incorrect. Pragmatism and a sort of doctrinal prescription are likely to win out over historical purity, and there is unlikely to be an outbreak of legal Donatism, tearing down the whole doctrine because of this longstanding inaccuracy with respect to one particular piece of medieval litigation. There is, however, a point in raising the issue of modern lawyers’ use of older ‘authorities’, and that point is to strengthen the quality and reputation of legal scholarship and practice as intellectual endeavours. Clearly, it is not essential for lawyers and legal writers to ‘name-check’ very old material in this context: both academic texts and practitioner books can certainly manage to give a coherent account of freehold covenants without mentioning The Prior’s Case at all.[24] Including it, therefore, is a clear choice, calculated to give a certain impression, both of the law (as ancient) and of the author (as learned). From the point of view of the legal historian at least, inaccuracy with older legal sources looks like intellectual pretension: making a show of knowledge, based on an idea that it is impressive to hark back to the distant past, even if this is not necessary, but without the willingness to do the work of understanding it. We might see it as inconsistent both with general academic standards, and also with the common law’s own reservations about hearsay evidence,[25] though, in another sense, there is a certain continuity with the strong ahistorical streak running through common law practice, from at least the time of Edward Coke.[26] Modern legal scholars certainly do not seem unduly perturbed by the possibility that ‘what a later judge declares to be the ratio of a case might actually be a different proposition than what the judge giving the initial judgment intended’.[27] Still, this is not quite the same as saying that an older law report said X when it clearly did not, and it does seem worth considering why this happens.

One contributing factor is certainly the fact that most lawyers have not studied legal history. Legal history is not a compulsory part of law degrees, and, of course, not all lawyers have law degrees in any case. It is certainly unrealistic, now or in the near future, to expect modern legal practitioners to become experts in medieval sources or legal history. Nevertheless, there are some fairly straightforward aspects of ‘practical legal history’ which could be acquired fairly straightforwardly, and would avoid some of the misunderstanding and misuse seen here. In particular, for those citing medieval ‘Y.B.’ sources, a basic understanding that there may be a difference between older and modern legal categories, and that there is a difference between older and modern legal sources does not seem too much to ask.

A key misunderstanding which is revealed by the treatment of The Prior’s Case is the apparent assumption that Year Book material is essentially similar to a modern law report. These items, however, are profoundly different in nature to a report from the post-1865 period, or a modern judgment of the sort published online by courts.[28] They were not ‘official’ publications, were not treated as authoritative texts of the modern sort in their own time, and, as The Prior’s Case demonstrates, did not necessarily include either an outcome or a ratio.[29] They were writings produced for the instruction of lawyers pleading in the royal courts, modelling arguments by lawyers, exchanges with the judges, as they undertook the task of reaching a single issue to be put to proof. The way in which premodern courts and lawyers worked was very different to those in the ‘post-enlightenment’ world. As Joshua Getzler has put it, ‘The common law until well into the eighteenth century may be described as a type of tacit or craft knowledge, learnt by doing, and resistant to formal or rational doctrinal statement.’[30] Minimal additional training or study would probably be some restraint on lawyers and legal writers who wish to present its sources as if they were such formal, rational, doctrinal statements.

There are also some obvious ways in which methods of reasoning and use of authority in common law make distortions of older sources more likely. One of these is the technique of reading history backwards, favouring recent sources over sources contemporary to events in legal history. As F.W. Maitland, for example, noted long ago, while a historian would instinctively start from the earliest, original sources, this is not the technique of the common lawyer.[31] This remains the case. For example, even when writing for a book arguing for greater historical sensitivity amongst Land Lawyers, a lawyer-author reaches for the eleventh edition of Blackstone and a nineteenth-century edition of Coke, rather than those versions published in the eighteenth and seventeenth centuries respectively.[32] If we return to the Bath Rugby case, and look at how Nugee LJ’s account of The Prior’s Case was arrived at, it becomes apparent that he has used a ‘tracing back’ method, starting with a judgment from In Re Ballard’s Conveyance, a case from the 1930s,[33] and working backwards through a line of precedents, to an account of The Prior’s Case in Sir Edward Coke’s report of Spencer’s Case (1585).[34] It does not appear that he thought it necessary to go any further. Such a method, hallowed by common law practice as it may be, is, clearly, likely to increase the chances of distortion. This is made all the more likely by the particular reliance upon, and deference to, Sir Edward Coke seen here and in the work of many others who cite the Year Book account of The Prior’s Case. Coke was a very important figure in the history of law, but one long known by legal historians to have been – as we would now see it – free with facts in his accounts of litigation from his own time, and with older legal sources.[35] This is not the place for an in-depth assessment of Coke, and his interpretations do not necessarily need to be seen as dishonest, but rather an effort to tidy things up, to bring an older legal world within the norms of his own day. It should be noted, however, that his approach might serve to present as substantive rules parts of a tentative discussion about pleading, as here, and that later lawyers’ lionisation of Coke and tendency to take his work uncritically and deferentially, can perpetuate and amplify his distortions.[36]

On a smaller scale, distortions may also be perpetuated or amplified by another tradition in the literature of modern legal practice: the ‘textbook tradition’, and specifically the ‘practitioner work tradition’. This sees a substantial hallowed work on a particular area of law passed on over an extended period, to be curated by new editors.[37] Such new editors are, of course, at liberty to change a book radically, but may find it to be the line of least resistance not to do so, perhaps particularly when the ‘line of descent’ is personal as much as professional. In the relevant context of freehold covenants, there is a good example of this: the tome known as ‘Preston and Newsom’, which passed from these paired authors, after the early death of C.H.S. Preston, to Newsom alone, then to Newsom’s son, later joined by a junior barrister in Newsom junior’s chambers.[38] This latest edition of the work continues to list ‘The Prior of Packenham’s Case’, and to give the old story of the case, while the author of its main rival, which first came out in 1999, starting afresh and unburdened by existing text, did not feel the need to bolster its intellectual credentials with this appeal to the medieval at all. There certainly seems to be a good argument for legal writers to avoid distortions and the appearance of intellectual pretension by following this practice, and for those responsible for new editions of older works to pay attention to the accuracy of their use of historical legal material.

Concluding thoughts

A memorial brass to Lawrence Pabenham (and his two wives) in the church at Offord D’Arcy, gets the date of his death wrong (or at least gives a date different to that to be found in ‘official records’).[39] Lawrence, the claimant in what has come down to us as The Prior’s Case, thus seems to have been a man who attracted inaccuracy and re-interpretation, from a point soon after his death. We cannot, of course, hope to obtain ‘the whole truth’ about a man of the fourteenth century from the documents and other evidence left behind, and it would certainly be naïve to assume that he, or his legal representatives, told his story in the litigation with which we are concerned in ways entirely ‘unspun’ and consonant with the truth. Nevertheless, while the whole historical truth, especially at such a distance, is unattainable, there is still some merit in avoiding clear untruths.

While citation of the Year Book report of The Prior’s Case for a proposition regarding the benefit of covenants has tradition behind it, as this paper has emphasised, the usual account of the case is inaccurate and heavily dependent upon second hand, and more remote, summaries of the report. In the predominant account of The Prior’s Case, legal practice has, in effect, created its own rewritten versions of the past, for use in modern law. Fiction, or disregard for the truth, has not been unknown to the common law, over its long history, and elements of fiction remain in some parts of Land Law in particular.[40] Gratuitous inclusion of supposedly historical ‘colour’ (perhaps a particular issue in Land Law)[41] and the casual attitude to the Year Book report in this case which is not infrequently seen, do not, however, do anything to uphold the reputation of intellectual rigour of the common law.

What might be done to cure this problem? As an academic legal historian, I would certainly be in favour of a greater place for legal history within the Law School syllabus, as Russell Sandberg suggests,[42] in order to ensure a better grasp of the history of law in general, or else of the widespread use of legal historians as (well-paid) consultants in cases with a historical element, but, more modestly, some improvement in this area might be secured by some instruction for students, judges and advocates in the nature, limitation and appropriate use of older law reports and other legal sources, in order to ensure that these were only used when necessary, and were not used incorrectly. An hour or two with some Year Book translations would do a great deal to make sure that the differences from modern law reports was understood, and there was an appreciation of what lay behind those ‘Y.B.’ citations in footnotes. A class on not being unthinkingly deferential to Coke’s versions of legal events would also be useful. Those who write about law could also be encouraged to to be more honest in their citation practices. It does not seem an unreasonable expectation that those who cite older sources in their published work should either actually have read them, or should make it clear that they have not. Those of us who mark student dissertations expect this level of truth, after all: should legal writing not also live up to this standard? Challenging inaccuracy, and questionable method, is one way in which academics should seek to have an ‘impact’ upon the profession, and, returning to the theme of the SLS conference, if they are prepared to admit their need, one area in which practising lawyers might have something to learn from academic legal historians.[43] There are lessons here for legal historians too, however. Most of us would bridle at the suggestion that legal history is in a ‘comatose state’,[44] but it would probably not be inaccurate to say that, while it is fully conscious, it is not very adept socially, and has tended to remain on the margins of legal academia and wider legal discussion. This, I hope, is changing, but those of us involved in legal history, and medieval legal history in particular, an area seen as something of a niche, technical, ‘geeky’ area, would certainly be well advised to learn to communicate with lawyers and legal academics in a clear, inclusive and engaging way. Talking to strangers at parties: a challenge. Maybe blogs count though?

Gwen Seabourne

August 2024.

[1] It is sometimes assigned the date 1369: see, e.g., Law Commission Consultation Paper No 186, Easements, Covenants and Profits à Prendre, 7.12. For modern references, see, e.g.: M. Dixon, J. Bignell and N. Hopkins (eds), Megarry and Wade the Law of Real Property 10^th edn (London: Sweet and Maxwell, 2024), 31-014; L. Turano, ‘Intention, interpretation and the “mystery” of s. 79 of the Law of Property Act 1925’, Conveyancer and Property Lawyer (2000) 377-97, 379; G.L. Newsom, E. Paton, C. H. S Preston, and G. H Newsom, Preston & Newsom Restrictive Covenants Affecting Freehold Land, 11th edn (London: Sweet and Maxwell/Thomson Reuters, 2020), Table of Cases and 1-023.

[2] This was a case concerning a 1922 covenant against certain commercial uses of a piece of land, and whether it prevented a rugby club from developing the land as desired.

[3] at 37, quoting Clauson J, in In Re Ballard’s Conveyance [1937] 1 Ch 473 at 482, who was, in turn, coming at The Prior’s Case through Coke’s account in Spencer’s Case (1585) 5 Co Rep 17 b.

[4] Use of the YB report as authority for the rule that the benefit of a covenant can pass to the covenantee’s successors by annexation to the land, see, e.g.: B. McFarlane, The Structure of Property Law (Oxford: Hart, 2008), 43; K. Gray and S.F. Gray, Elements of Land Law 5^th edn (Oxford, 2008) 3.3.4; Law Commission Consultation Paper No 186, Easements, Covenants and Profits à Prendre, 7.12.

[5] For US discussion, see, e.g., M.J. Festa, ‘Applying a usable past: the use of history in law’, Seton Hall Law Review 38 (2008) 479-554. For criticism of the use of history in modern court proceedings, see, e.g., C. Wide, Protest and the Criminal Law (Westminster: Policy Exchange, 2022). For discussion of meaning and time in the context of legislation see, e.g., M.D. Kelly, ‘Applying laws across time: disentangling the ‘always speaking’ principles’, Oxford Journal of Legal Studies 20 (2024), 1–28. See also P. Goodrich, ‘Poor illiterate reason: history, nationalism and common law’, Social and Legal Studies 1 (1992), 7-28, 17.

[6] M. Wonnacott, Forgotten Land Law (Clark NJ: Talbot Publishing, 2022).

[7] The ‘record’, or ‘official’, government, source, The National Archives, Kew, at CP40/430 m.60 (1368H).

[8] For a translation, see, e.g., H.A. Bigelow, Introduction to the Law of Real Property: Rights in Land (St Paul: West Publishing Co., 1919), 427-9.

[9] E. Sugden (now Lord St Leonards), A Concise and Practical Treatise of the Law of Vendors and Purchasers of Estates 13^th edn (London: H Sweet, 1857) 474-475: ‘The case stands alone, but the grounds upon which it depends have never been explained’; T.A. II, ‘Covenants for title running with Land’, American Law Register 11 (1862-3), 193-211, 257-73, 201. Attention seems to have been greater in the US. For example, O. Wendell Holmes, The Common Law (London: Macmillan, 1881), 395, and Pakenham’s Case is in J. Chipman Gray, Select Cases and Other Authorities on the Law of Property, 2^nd edn, (Cambridge MA: Harvard University Press, 1906-1908) , vol. 2, 357.

[10] G.E. Woodbine, ‘Pakenham’s Case’, Yale Law Journal 38 (1929), 775–81.

[11] A.W.B. Simpson, A History of the Common Law of Contract: the rise of assumpsit (Oxford: Clarendon Press, 1975).

[12] C. Harpum, M. Grant, S. Bridge (eds), Megarry and Wade The Law of Real Property (London, Sweet and Maxwell, 2000) 16-014.

[13] See Woodbine, ‘Pakenham’s Case’.

[14] CP 40/430 m.60; ‘Houses of Austin canons: the priory of Canons Ashby’, in R.M. Serjeantson and W.R.D. Adkins (eds), A History of the County of Northampton: Volume 2 (London: Victoria County History, 1906), 130-133.

[15] See Newsom and Paton, Preston & Newsom Restrictive Covenants 11^th edn, Table of Cases and 1-023.

[16] This version is neither to be found in the Year Book, nor the passage from Coke on Littleton, 385a, nor Smith’s Leading Cases (also cited in Preston and Newsom).

[17] See, e.g., D. Knowles and R. N. Hadcock, Medieval Religious Houses of England and Wales (London, Longman, 1953); ‘Religious Houses: Introduction’, in W. Page (ed.), A History of the County of Suffolk: Volume 2, (London, 1975), 53-56.

[18] The conventional formula showing that the court declined to give judgment at present was employed: see J. Rose, ‘Doctrinal development: legal history, law, and legal theory’, Oxford Journal of Legal Studies, 22 (2002), 323–340, at 328.

[19] The argument based on land holding was that Lawrence was tenant in tail of the land or manor to which the chantry was appurtenant (Hinwick), so, while Margaret might be ‘senior’ in terms of blood, he had the link via the land, and that meant that only he could in fact sue on this.

[20] We may note that in the Year Book, in Coke and ever thereafter, Margaret is written out of the story, which becomes one of an older and younger brother. This is interesting in its instinctive effacing of females, but ultimately not crucial to the legal argument.

[21] British Library MS Egerton 3033 sv Hynewyke, unnumbered membrane, ‘Copia cantarie de Pabenham’.

I am left wondering whether the payments were kept up, and also whether part of the background to Lawrence’s dispute with the canons might have been that it was an attempt to obtain an advantage without fulfilling the other side of the bargain. In the circumstances, since Lawrence was not Hugh’s heir, might success for him have resulted in the situation that he obtained an advantage from the canons, while the covenantee’s actual heir(ess) had the obligation to pay the annual sum to the canons? He may also have been attempting to bypass the enforcement/dispute mechanism apparently set up in the composition document. Furthermore, we may also note that, despite suggestions of the irrelevance of the covenantor’s landholding, Canons Ashby priory did in fact have land in Podington/Hinwick): ‘Houses of Austin Canons’. Canons Ashby Priory’s cartulary is MS Egerton 3033 in the British Library. For reference and descriptions, see: G. Baker, History and Antiquities of the County of Northampton 2 vols (London, 1822), II, 10; G.R.C. Davis, Medieval_Cartularies_of_Great_Britain_and_Ireland (revised by C. Breay, J. Harrison and D.M. Smith (London: British Library, 2010), 157.

[22] See, e.g., R.C. Palmer, English Law in the Age of the Black Death, 1348-1381: a transformation of governance and law (Chapel Hill: University of North Carolina Press, 1993), 66-8; T.F.T. Plucknett, Legislation of Edward I (Oxford: Clarendon Press, 1949), 92-92); D.J. Ibbetson, Historical Introduction to the Law of Obligations (Oxford: Oxford University Press, 1999), 38.

[23] K. Shoemaker, M. Pardon and S. McDougall, “Abortion was a crime”? Three medievalists respond to ‘“English cases dating all the way back to the 13th century corroborate the treatises’ statements that abortion was a crime”’, The Docket: Law and History Review (2022).

[24] See, e.g., M. George, Antonia Layard, and M. P. Thompson, Thompson’s Modern Land Law 8^th edn (Oxford: Oxford University Press, 2022), 12.3.2; M. Dixon, Modern Land Law 11^thedn (Abingdon, Oxon: Routledge, 2018); A. Nair and J-A. MacKenzie, Textbook on Land Law 19^th edn (Oxford: Oxford University Press, 2023), c. 26; A.M. Francis, Restrictive Covenants and Freehold Land: A Practitioner’s Guide 5^th edn (Lexis/Nexis, 2019).

[25] See, e.g., R. Munday (ed.), Cross and Tapper on Evidence (Oxford: Oxford University Press, 2018), c. 12.

[26] See Goodrich, ‘Poor illiterate reason’, 17.

[27] A. Gillespie and S. Weare, The English Legal System, 9^th edn, (Oxford: Oxford University Press, 2023), 78.

[28] See, e.g., J.H. Baker, Introduction to English Legal History 5th edn (Oxofrd: Oxford University Press, 2019), 188-95.

[29] Woodbine, ‘Pakenham’s Case’, 775.

[30] J. Getzler, ‘Legal history as doctrinal history’, in M.D. Dubber, and C. Tomlins (eds), The Oxford Handbook of Legal History, (Oxford, 2018) 171-92, 185.

[31] F.W. Maitland, ‘Why the history of English law is not written’, in H.A.L. Fisher (ed.), Collected Papers of F.W. Maitland, vol 1 (1911), 480-97, 491: ‘What the lawyer wants is authority and the newer the better; what the historian wants is evidence and the older the better.’. See also the comments on Coke’s questionable use of medieval sources.

[32] M. Wonnacott, Forgotten Land Law (Clark NJ: Talbot Publishing, 2022), vii. For an example from a different area of law, see, e.g., R. v. Brown [1994] 1 AC 212, 239E, 262B, 277B, where definitions of mayhem/maim, an offence in existence from the medieval period, is taken from the eighth edition of Hawkins’s Pleas of the Crown, from 1824.

[33] Clauson J, in In Re Ballard’s Conveyance [1937] 1 Ch 473 at 482

[34] 5 Co Rep 17 b. See, similarly, A.E. Randall, ‘Covenants running with the land’, Law Quarterly Review 25 (1909), 280-283, 280.

[35] See, e.g., J.H. Baker, ‘New light on Slade’s Case’, Cambridge Law Journal 29 (1971), 51-67; Getzler, ‘Legal history as doctrinal history’, 185.

[36] Maitland, ‘Why the history of English law is not written’, 491; G. Seabourne, ‘Coke, the statute, wives and lovers: routes to a harsher interpretation of the Statute of Westminster II c. 34 on dower and adultery’, Legal Studies 34 (2014), 123–42.

[37] In the academic textbook context, this has been commented on by, for example, David Sugarman and Russell Sandberg: Sandberg, Subversive Legal History, 204-205; David Sugarman, ‘Legal theory, the common law mind and the making of the textbook tradition’, in W. Twining (ed) Legal Theory and the Common Law (Oxford: Blackwell, 1986) 26-61, 28, 52.

[38] This work was originally written by Cecil Herbert Sansome Preston and George Harold Newsom, its first edition being in 1939, its most recent, at the time of writing, in 2020. After Preston died in 1940 (see Times, 8^th June, 1940, 4; Times, 17^th June 1941, p. 7., his collaborator, Newsom, published the second to fifth editions. G.H. Newsom was assisted for the sixth and seventh editions by his son, George Lucien Newsom, a barrister at Guildhall Chambers, Bristol, and later a first tier tribunal (property chamber) judge. Newsom junior took over alone for the eighth to tenth editions, and then was joined by a member of his chambers and New College, Oxford, graduate, and later a tribunal judge, Ewan Paton, for the eleventh edition. The personal connections between the authors/editors are emphasised in the introduction to the 2020 edition.

[39] This gives his death as 10^th June, 1400, while records put it at 1399: W. Lack, H.M. Stuchfield and P. Whittemore, The Monumental Brasses of Huntingdonshire (London: Monumental Brass Society, 2012).

[40] Consider, for example, the doctrine of lost modern grant: see, e.g., Thompson’s Modern Land Law 11.6.2.2.

[41] See, e.g., A.L. Brophy, ‘Doing things with legal history: historical analysis in property law’, in Dubber and Tomlins, Oxford Handbook of Legal History, 923-940, 923. Certainly, the scholar of modern Land Law with some knowledge of legal history will notice the lack of reticence at bringing in medieval materials is not confined to ‘law reports’, but includes, for example, references to the treatise known as Bracton, included without necessarily showing a grasp of current legal historical thinking on the nature of this treatise. See, e.g., Rahman v Zaman [2024] EWHC 1290 (Ch) at paragraph 65, and compare T.J. McSweeney, Priests of the Law: Roman Law and the Making of the Common Law’s First Professionals (Oxford: Oxford University Press, 2019), 1-2; P. Brand, ‘The date and authorship of Bracton: a response’, Journal of Legal History 31 (2010) 217, 220–22, 225 and works cited therein.

[42] Russell Sandberg, Subversive Legal History: a manifesto for the future of legal education (Abingdon: Routledge, 2021).

[43] It has been noted in another context that common law courts see old law as their domain, part of their tradition, and may not be willing to take correction from those with expertise in history: S. Erman, and N. Perl-Rosenthal, ‘Historians’ amicus briefs: practice and prospect’, Dubber, and Tomlins, Oxford Handbook of Legal History, Oxford, 2018), 1095-1114, 1102.

[44] Daniel Siemens, ‘Towards a new cultural history of law’, InterDisciplines 2 (2012) 18, 19, noted in Sandberg, Subversive Legal History, 199, which expresses the problem in more informed and measured fashion.

Land Law poetry: ad-VERSE possession?

There is plenty of poetry about land and landscape but, strangely, not so much on your actual Land Law. It is always nice, then, to come across a work of Land-Law-relevance. There is one such piece in the Welsh language newspaper, Y Darian, for 21st February 1918. Yes, in the depths of certain other global events, some people still had time to turn their minds to real property, including a certain T.H. Lewis, Treharris. Well done, T.H.!

The topic of T.H.’s poem was one of interest to those of us in the Wales-meets-Land Law-meets-Legal History Venn diagram intersection: the tŷ unnos or ‘one night house’. Tradition tells us that a person could claim a right somewhat akin to adverse possession by building a house in one night (following certain rules).[i] I claim no expertise in this lore (though it is attractive, isn’t it?) but it certainly has a hold on the Welsh imagination, and is seen from time to time in modern statements about the inaccessibility of housing (e.g. here).

The poem is very much making a contrast between the arrogant, greedy ‘Lords’ and the poor ‘folk’ or peasants. The peasant and his tŷ are on the harsh high ground and the greedy lords lower down in the ease and beauty of the valley (v3, l5), the peasant manages to build his house undetected, and to the surprise of his ‘betters’ (2.7).

The simplicity of the tŷ is stressed, as is its isolation on a mountain: it is a small cottage (v1 l1 bwthyn bach as opposed to tŷ bach …) dark and cell-like (v4 l3). It has no windows, no proper hearth, just a roof, a door and a simple chimney or vent, to allow the smoke out (as required by tradition) (v4 ll.5 -8). The rules of the game are shown to have been followed – it is a house built overnight (v1 l3; v4 l4) quietly (v2 ll.2-4) with peat/turf walls (v2 ll.1-2) and roofed (v2 l8).

It is a demonstration of the need of the common people (v1 l4) and an example of oppression (v1 l5; v3 ll.1-2). The offences of the ‘old arrogant lords’ (hen arglwyddi beilchion y byd) are likened to a poison (gwenwyn) over Wales (v3 ll3-4). The lords feast in their palaces (v3 l5) and doubt the right of the brave folk to even a yard of the bleak mountain land. (v3 ll. 7-8). The poor man is described as inspired by a longing to escape from the grasp of the greedy lords (4.1-2). Yet it is also a hopeful sign – seren gyntaf, the first star of a dark night (before the dawning of more just times) (v1 ll.7-8). And, as if anyone was unaware of the import of all this, T.H. rounds up in verse 5 by making it clear that it isn’t just a cottage on a mountain, but the introduction to a greater chapter (5.3) with the coming of justice and better things heralded by the dawn breaking on the walls of the little tŷ.

Well, that left me properly inspired and ready to take on some injustice. As it happens, I have to move out of my own home shortly, so may have a look for suitable tŷ unnos sites this afternoon …

11/8/2024

Image – stamped with credit: a possible ‘one night house’. For the avoidance of doubt, that is a sheep, not a righteous Welsh peasant. As far as I am aware, sheep have never tried to acquire a home in this way.

[i] For a journalistic introduction, see here. See, also, e.g., A.N. Palmer and E. Owen, A History of Ancient Tenures of Land in North Wales & the Marches (second edn, 1910), 82 (which adds the idea that the builder had to be newly married – how newly, I wonder: possibly less disappointing use of a wedding night than some, eh?) I am sure there are better, more recent things – something to investigate when I have a moment …

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

Part I[1]

George R.R. Martin’s (unfinished) Song of Ice and Fire series, also, as Game of Thrones, a massively successful TV series, is set in a quasi-medieval fantasy world. I am happy to note that there is quite a bit of legal content, with references to trials, laws, lawmakers. It falls within the Venn diagram overlap of my interests (fantasy, medieval history, law), and 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 SIF cycle, 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 set out here.

I: LEGAL SYSTEM(S)

Law-making

Sources of law appear to include custom (which varies according to territory and lordship) and deliberate law-making.

Kings have the right and obligation to pass laws, though some had little enthusiasm for the role. Robert Baratheon complains that ‘Laws are a tedious business’ (though at least he found them preferable to ‘counting coppers’).[2] The king’s second-in-command, the Hand of the King, is involved in drafting laws.[3] In the brief reign of Joffrey, the king at times made decrees and the Small Council gave their assent,[4] though it is unclear whether they were more than a rubber stamp, and whether an un-approved decree would be valid.

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’.[5] ‘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.[6] Similarly, Princess Arianne of Dorne argued that rules barring those of the Kingsguard from marriage, which had been made by Aegon the Dragon, could be revoked –

‘What one king does another can undo or change’[7]

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 while still alive.

Monarchs in SIF 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 status-emphasising tokar. an extremely impractical garment, but is dissuaded from this course of action because it would be extremely unpopular.[8] 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’.[9]

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 the poor).[10]

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,[11] 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,[12] though others fought a civil war to enforce it.

Lands without lawyers?

A striking feature of Westeros is the complete absence of a legal profession: we see neither trial lawyers nor professional judges nor draftsmen. Although there are individuals who devote themselves to learning – the maesters in Oldtown,[13] and some princes[14] – and there are 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.[15] 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.[16]

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,[17] and Aegon the Conqueror had a ‘master of laws’),[18] but these are noble ‘civil servants’ rather than trained jurists (or holders of a postgraduate degree in law), 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.[19] The official called the King’s Justice (Ser Ilyn Payne) is simply an executioner,[20] with additional charge of dungeons and gaolers.[21]

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.[22] Eddard Stark takes a very royalist view of the constitution, stating that ‘all justice flows from the king’.[23] 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.[24] In her view, ‘Justice … [is] what kings are for.’[25]

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].[26] 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.[27]

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.[28] 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.[29]

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.’[30]

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.[31] 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’.[32] He claims jurisdiction over adultery and sexual offences, and homicide (or deicide – see Part II) of the previous High Septon, and treason, and accepts that the Faith does not have the right to impose capital punishment.[33] 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.[34]

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,[35] and that decrees altering the law were made in Dorne.[36] 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,[37] and had tried the Brave Companions/Bloody Mummers for various killings and rapes, and Septon Utt for killing boys he molested.[38]

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’,[39] and is horrified that Craster is said to ‘obey no laws but those he makes himself’.[40] 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 honour, 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.[41] 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.

With multiple jurisdictions, it is not surprising to see disputes as to which should apply. The television series[42] has Viserys Targaryen end up badly, crowned with molten gold and dying as a result, because he broke a Dothraki rule against carrying blades in their holy city, though he did not accept that their law applied to him.[43]

Justice and vengeance

There are interesting parallels to early medieval moves from family-based ‘feuding’ responses to misconduct, to central, ‘justice’ responses in exchanges between Eddard Stark and those offended by the activities of the brutal Gregor Clegane. Ned will not give permission for vengeance, but only justice according to law.[44]

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.[45] Also, lords may have 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. He had done this rather than having his hand removed, indicating that they had, or assumed, the right to punish.[46] 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.[47] Tarly is described sitting on a specially erected platform, near a long gallows which could accommodate twenty men. Mutilatory and capital sentences are passed and carried out immediately, and some corpses are left hanging for some time.[48] Matters which were regarded as offences included theft from a sept, food adulteration, passing on sexually transmitted diseases and assault with a knife.[49] The cases are to be tried over more than one day, and those accused of crimes are kept in a dungeon pending trial.[50]

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.[51] 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 regicidal poisoning of Joffrey, the proceedings commence with a prayer by the High Septon, asking the Father to guide them to justice.[52] The accused is asked whether he is guilty.[53] The judges ask questions of the accused.[54] Witnesses for the prosecution are heard first, then those for the defence, if available. The accused may not to speak without leave of the court, and does not seem to be able to cross-examine witnesses against him.[55]Trial by battle is a possible mode of proof, at the election of the accused (and Tyrion Lannister selects this proof).[56] 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.[57] A champion is also assigned to fight ‘for the deceased’ – in this case, Gregor Clegane fights ‘for Joffrey’,[58] 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’, also with a champion, when accused of the attempted murder of Brandon Stark.[59] Certain individuals are constrained in their choice of champion. Queens must be defended by a sworn knight of the Kingsguard, which may be inconvenient.[60]

Joffrey insists on a trial by combat, to the death, in a land dispute between two knights (the fight being ordered to be in person rather than with champions. Such a mode of trial in a land case seems to be illegitimate,[61] though it is an interesting 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 confined in the Eyrie without trial, and insisting on a trial according to the king’s justice.[62] 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).[63] 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,[64] 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 killings, rapes and destruction on the basis of accusations, with no trial, also stripping him of rank, titles, lands, incomes and holdings.[65] 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.[66] 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.[67]

At a lower level, trials may be brief or non-existent. In the judicial session of Lord Randyll Tarly, at Maidenpool, mentioned above,[68] trials or disposals are very brief. Some, such as that in which a prostitute is 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.[69]

‘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.[70] 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.[71] 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’.[72]

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.[73] When he and his brotherhood try the Hound, Sandor Clegane, for crimes including murder,[74] 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.[75] 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.’[76] 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’.[77] When the Hound wins, the result is respected, and he is allowed to go.

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.[78] It is certainly the case that some monarchs flouted the rules which applied to others. As Catelyn Stark notes in the context of incest, though this was an offence ‘hated by gods and men’, ‘Like their dragons, the Targaryens answered to neither gods nor men’.[79] 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’.[80] 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.

Concluding thoughts on law in general

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,[81] 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’.[82] Stannis Baratheon has 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’,[83] and his treatment of Davos (later Ser Davos Seaworth)- mutilating his hand for smuggling despite ‘the Onion Knight’ having saved his life.[84] His brother, Robert I Baratheon, however, had been known for mercy contrary to the strict letter of the law.[85] 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).[86] This echoes the religious idea of the Faith that justice is for the Father and mercy for the Mother.[87] There are certainly resonances with medieval ideas of mercy, and intercession, as particularly feminine.

Part II: SUBSTANTIVE LAW

Persons

Slavery, freedom and points between

Personal freedom – or its absence – is a recurring theme in SIF and GOT. Different territories have different attitudes to, and laws concerning, slavery: this 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, enslaved people are essentially chattels,[88] and can be ‘bought and sold, whipped and branded, used for the carnal pleasure of their owners, bred to make more slaves’.[89] They are inherited when their master dies, unless explicitly freed.[90] Manumission appears to be possible, particularly on death of the owner, but the process is not described. The enslaved 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.[91]

There is a variety of standards of treatment for the enslaved. 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.[92] Dothraki and some others oblige the enslaved to wear collars, presumably to mark their status.[93] Ancillary laws are necessary to safeguard the institution – so in Volantis, it is forbidden to help a slave escape.[94]

Slavery is not permitted in Braavos, a state founded by escaped slaves,[95] nor in the Seven Kingdoms of Westeros.[96] A major feature of the progress of Daenerys Targaryen is her strong opposition to slavery, and her freeing of the enslaved wherever possible. Victarion Greyjoy also frees galley slaves, modelling himself on Daenerys.[97]

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.[98] Slavery is described by those of Westeros as an evil, and an ‘abomination’ to all of the gods of the Seven Kingdoms,[99] 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.[100] The instinct that people cannot be owned, and are not chattels, is demonstrated nicely in the television series, in a conversation between Jon Snow and Samwell Tarly: Snow tells Tarly that they can’t steal Gilly, the young wife of the repellent Craster, and Tarly responds ‘We can’t steal her. She’s a person, not a goat.’[101]

Pentos does not maintain with any great enthusiasm the ban on slavery which it was forced by the Braavosi to enact.[102] So, for example, those who were enslaved elsewhere seem to remain slaves there,[103] 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.[104]

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.[105] 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.[106] Some rulers of the Iron Islands disapproved of thraldom and sought to end the status,[107] but it was allowed by Balon Greyjoy, and so is legal at the time of the Song cycle.[108]

Those who free the enslaved 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.[109]

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’.[110]

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.[111]

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 (enslaved) ‘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’.[112]

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.[113]

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’.[114] Having accepted that such transactions are allowed, she imposes a tax on them.[115]

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.[116]

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 slavery in the medieval period (e.g. St Wulfstan), Daenerys’s attitude – and her solutions – are rather more post-Enlightenment.

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.[117] This also appears to be the case in those following the way of the Old Gods of the North and those following R’hilor, Lord of Light. Not everyone has always stuck to the monogamous model, however. Some Targaryens took more than one wife and while the Ironborn have only one ‘rock wife’ at home, they are allowed as many ‘salt wives’ as they can capture and keep.[118] Despite attempts to outlaw the practice of taking these additional, captured, wives,[119] 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.[120]

Marrying close family members is regarded as wrong (‘seen as a sin by the Faith’, ‘hated by the gods’ and ‘a monstrous sin to both old gods and new’ 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’.[121] Rather more Egyptian than medieval. The twins Cersei and Jaime Lannister also have a long term incestuous relationship, but keep it secret,[122] though Jaime dreams of marrying Cersei, and also marrying their children to each other.[123]

Marriage is prohibited to the Kingsguard and the Night’s Watch, to silent sisters and septons and septas. and the maesters also are celibate.[124] At least for a man of the Night’s Watch, marriage could lead to capital punishment,[125] 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’,[126] and Dareon does not regard visiting prostitutes or undertaking a one night ‘marriage’ to a prostitute as serious or dangerous breaches of his oath.[127]

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’.[128] Tyrion proposes that Myrcella weds Trystane Martell of Dorne when she reaches her fourteenth year.[129] 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’.[130] We might note that the age of Daenerys when married was adjusted in GOT: the actress Emilia Clarke was well over the age at which modern audiences would consider her capable of consent to sex and marriage, or, indeed to being stripped and pawed by less-naked males.[131]

One marriage which does not seem to fit the pattern of is 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).[132] 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.[133] 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.[134]

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.[135] All very ‘coverture’. 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. In at least some traditions, a strong sense of unity of persons is expressed in the marriage ritual. For example, the marriage of Alys Karstark and Magnar of Thenn, according to the R’hilor rite, involves jumping a ditch, and the idea that ‘Two went into the flames’ ‘one emerges’ is expressed. Furthermore, the repetition of ‘What fire joins, none may put asunder’ is obviously similar to Christian rites.[136]

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).[137] 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.[138] 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.[139] 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).[140] 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.[141] We might see this as entirely about having the power to disregard the law, but perhaps it imports an idea of at least arguable validity. The wildings’ custom of bride-stealing was not seen as excluding consent.[142] 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.[143] 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.[144] The right is not available to those below the rank of lord: thus a castellan cannot make marriage pacts.[145]

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),[146] 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’.[147]

Once married, Westerosi husbands have considerable control over their wives’ person and property. They can chastise an adulterous wife.[148] Again, though, this was not uncontested. Dorne, influenced by the rules of the Rhoynar, did not allow husbands to chastise wives in this way.[149] 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’.[150]

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’ – an echo of the post-medieval distortion of common law spousal chastisement limitations known as the ‘rule of thumb’.[151] 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).[152] 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’.[153]

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’.[154] 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.[155]

Mayhem, disfigurement, deformity

Possibly not fitting in entirely snugly at this point in my framework, but important to note nonetheless is the frequent mention of the bodily damage and/or disfigurement of various people.

Sometimes injuries are defined as ‘maims’ – a concept well-known to scholars of medieval law, and still retaining some role in law today (I am working on this at the moment). At other times injury or disability or disfigurement is mentioned in a way that is not particularly ‘legal’, but is, nevertheless, noteworthy, in terms the attitudes, either of the characters or society in this imaginary world. At times, it may also relate to the assumed attitudes of readers or viewers of these works.

As will be mentioned below, the law of Westeros, and its practice, included mutilatory punishments for a variety of offences – as did several medieval western European jurisdictions. Davos Seaworth and Jaime Lannister both have a body part deliberately removed: fingers in the case of Davos and a hand in the case of Jaime. (The latter was not a punishment, however.) Both of these are injuries which would, in medieval England, have counted as mayhem). Similar in some ways, though not the result of human agency, is the episode in which the Greatjon, having been rowdy with Robb Stark, has two fingers bitten off by Grey Wind the direwolf.[156]

The importance of a hand, and especially a sword hand, is emphasised by Jaime Lannister, who identifies himself very strongly with this particular body part: ‘I was that hand’.[157]

Some hope is held out for the ‘maimed’: prosthetic hands do not seem to be out of the question,[158] and some ‘maimed’ men are nevertheless effective warriors.[159]

Sticking with mayhem for a moment, there are also some suggestions of consented-to body alteration which would have amounted to mayhem in medieval English law, at least if inflicted by another: the practice of the mountain clan, the Burned Men, was to self-injure ‘to prove their courage’. This might involve removing a nipple or an ear (not mayhem) a finger or an eye (potentially mayhem).[160]

Several characters are in some way damaged or disfigured. How are they treated? At times, the answer is ‘questionably’. A particular example is the frequent repetition of the fact that (in addition to his short stature) Tyrion Lannister has ‘mismatched’ eyes which people find unsettling.[161] This could be passed off as representing the prejudiced view of that world, but it is repeated so frequently, and by the omniscient narrator as well as individuals, that that would be fairly weak pleading. It does link to a depressingly pervasive tendency to see eye abnormalities as especially indicative of something in the nature of moral shortcoming: the windows to the soul and all that. Want an obvious villain? Give them non-standard eyes. Never doesn’t hurt. Adding an extra layer, it should be noted that this was something removed from the television series, though it could easily have been done with coloured contact lenses: whether in belated recognition of its lazy unkindness or because of an assumption that TV audiences would be too unsettled by ‘mismatched eyes’ is not clear.

‘Cripple’ is used frequently in relation to Bran,[162] and there is an idea in the world of the Song that euthanasia might be a good option, if one is very disabled. Thus, Jaime thinks Ned should end Bran’s torment, as a ‘mercy’: ‘’Even if the boy does live, he will be a cripple. Worse than a cripple, a grotesque. Give me a good clean death’.[163] (Tyrion, however, disagrees). Interesting echoes of some modern debates on quality of life and euthanasia there.

B: 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.[164] 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 and Joffrey says failure by those instructed to swear fealty to him to do so is treason.[165] 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’.[166]

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’.[167] 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.

A treason conviction in Westeros leads to forfeiture of land and titles, as in medieval England. The effects thus stretch beyond the perpetrator himself or herself.[168] 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.[169] 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’.[170] 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’.[171] 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.[172] Cersei also presses for mutilation of anyone speaking of incest or calling Joffrey a bastard, though this is not accepted by others.[173]

Somewhat 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’.[174]

An interesting idea which may be from a different legal tradition is that desiring the queen can be treason. Daenerys tells her lover, Daario, that once she is married (to Hizdahr) ‘it will be high treason to desire me’ – this, presumably reflects the law of Meereen law.[175] One wonders about detection of an offence of this sort, in the mind of the desirer.

Desertion from the Night’s Watch

This appears to be an offence with no possibility of defence. ‘The Law is the Law’, Ned Stark says of the deserter he executes in the first episode of the TV series, and neither he nor the deserter himself regard fleeing from ‘the Others’ as excusing behaviour.

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.[176] 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,[177] 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’.[178] 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.[179] Likewise, being ‘mad with love’ is not an excuse (or not a complete excuse?) for homicide.[180]

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).[181]

In Westeros, tournaments may end in death, without condemnation of the killer, and at Dothraki weddings, fights to the death over women are unpunished.[182] 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.[183] 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.[184] 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.[185] 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,[186] but guest right is mentioned in relation to widely spread parts of Westeros, for example: the Wall, the wildings and the North , Dorne.[187] There is a suggestion that it is a matter of the laws both of gods (old and new) and of men.[188] Kinslaying is likewise described as an offence against the laws of gods and men.[189]

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.[190] Nevertheless, there is a loophole, and traders there employ stranglers to kill thieves, so as to kill without offending against the ban,[191] and Khal Drogo kills Viserys without offending against the ban by crowning him with molten gold.[192] 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.[193]

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.[194] The supposed suicide of Ser Cortnay Penrose is not particularly condemned.[195] Tyrion considers killing himself with poisonous mushrooms, rather than allowing Cersei to capture him alive,[196] 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.[197] The Dothraki clearly did not consider that any laws forbade leaving ‘deformed children’ to be eaten by feral dogs.[198] How Daenerys’s smothering of the living but incapable Khal Drogo would be viewed in Dothraki or Westerosi law is unclear.[199] 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,[200] and Val, the ‘wilding princess’ advocates killing children with greyscale – smothering, stabbing or poisoning them.[201] Beric Dondarrion, Sandor Clegane and others approve of giving the dying (after a fight) ‘the gift of mercy’.[202] 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’.[203]

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,[204] but, although the dying Hoster Tully feels guilt, it is not clear whether this would be regarded as a crime. Cersei also admits to having aborted Robert Baratheon’s child: ‘My brother found a woman to cleanse me …’.[205] North of the Wall, abortion is not seen as a big deal, and it is the choice of the pregnant woman. Thus, when Jon Snow is reluctant to have sex with Ygritte, Tormund does not see the problem: ‘if Ygritte does not want a child, she wil go to some woods witch and drink a cup of moon tea’.[206] Similarly in the Iron Islands, ‘moon tea’ is used: Asha Greyjoy also consulted a ‘woods witch’ to learn how to make this, ‘to keep her belly flat’ after starting to have sex.[207]

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.[208] 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…’.[209] Jokes and bawdy stories about non-consensual sex were also current,[210] and it is regarded as plausible that women make false claims of rape.[211]

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 in the world of the Song.[212]

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.[213] 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.[214]

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.[215]

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’ (an echo, of course of the fictitious right associated with real ‘feudal’ societies – and seen, e.g. in the historically questionable film Braveheart). 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.[216] 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.[217] 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.[218]

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.[219] Such crimes could be destabilising, as was the case with Prince Rhaegar’s ‘infamous abduction of Lyanna Stark, which contributed to a war and the overthrow of the Targaryens.[220]

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,[221] 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’.[222] And predation by men upon boys may bring punishment: Septon Utt was hanged by Beric for killing boys he molested.[223] In the television series, Joffrey considers making ‘Renly’s perversion’ punishable by death.[224]

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.[225] 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.[226] Stannis Baratheon similarly wanted to outlaw brothels.[227] 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.[228]

Finally, the television show makes reference to necrophilia, though this is said to be contrary to the King’s law.[229]

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.[230]

Offences of dishonesty

Theft is an offence, and its definition is wide enough to include such conduct as cheating at dice.[231]

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.’,[232] and Lord Randyll Tarly sentences a baker, found guilty of mixing sawdust in his flour, to a fine of fifty stags or whipping.[233]

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,[234] or, in the reign of ‘Mad King’ Aerys II, or under Stannis Baratheon, burned.[235] The Eyrie has its own rule or custom with regard to execution – convicted felons are ‘sent out through The Moon Door’ – falling to their death from this lofty exit.[236] 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.[237] 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.[238]

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.[239] This, claims Eddard Stark, dates to the times of the First Men, whose blood he claims runs in the veins of the Starks. 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’. [240] 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’.[241] Robb Stark also executes in person, beheading Rickard Karstark with an axe.[242] 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.[243] In the Iron Throne’s jurisdiction, bodies, or body parts, may be exhibited after an execution, to deter others from committing crimes.[244] 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.[245]

Joffrey has Eddard Stark beheaded for treason, though he claims that he could have had him torn or flayed.[246] 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, and Joffrey has it exhibited, though Tyrion orders the removal of spiked traitors’ heads.[247]

Tyrion is sentenced to death when his champion loses in the trial by battle to determine his guilt or innocence of poisoning Joffrey.[248] Men are burned as traitors by the regime of Stannis Baratheon – thus Alester Florent is burned as a traitor.[249] 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: the male rebels of Duskendale, in the time of King Aerys, were beheaded, while the lord’s wife was mutilated and burned alive.[250] Some traitors and rebels might be pardoned, once they come to the king’s allegiance.[251]

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.[252] Joffrey passes bills of attainder against various people who rebelled against him as their lawful king, stripping them of their lands and incomes.[253]

Genital mutilation appears to be the accepted punishment for rape. Daenerys assumes this,[254] and after the fall of Meereen, she ‘had decreed that …. rapists [were to lose] their manhood.’[255] Gelding as a punishment for rape is noted in Westeros.[256] Stannis Baratheon gelded the soldiers in his army who raped wilding women after his victory in the North.[257] Removal of fingers was the punishment meted out by Stannis on Davos ‘to pay for all his years of smuggling’.[258] A cheat is sentenced to lose a little finger, though is allowed to choose which hand should be mutilated.[259] Losing a hand might be the consequence of poaching,[260] and was formerly the penalty for ‘striking one of the blood royal’.[261] 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 cheating.[262] 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,[263] and tongue-ripping is suggested by Cersei for anyone who questions Joffrey’s legitimacy.[264] 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.[265] 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 has a thief’s hand chopped off in court.[266]

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.[267]

An element of religious symbolism can be seen in several punishments. A good example is the sentence by Lord Randyll Tarly, doing justice at 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.[268] Similar religious symbolism can be seen in the sentence passed by Rhaenys Targaryen on the man who beat his wife to death.[269] 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.[270]

Enlisting in the Night Watch might be an alternative to corporal or capital punishment. Those who take the black to escape punishment include poachers, ‘rapers’, ‘debtors, killers and thieves’.[271] Even traitors may hope to be allowed to ‘take the black’.[272] 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.[273]

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. 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’.[274] 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’.[275]

‘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.[276]

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.[277]

Part II C: ‘Private Law’

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.[278] Little more is revealed.

One possibly problematic area is property in dragons. Daenerys Targaryen appears to see them as (her) property,[279] but whether they can be regarded as truly under her control, or should be so regarded, is not entirely clear.

Transfer of property in enslaved people is shown in Daenerys Targaryen’s acquisition of the Unsullied. This is formalised by the passing to her of a whip. She throws away the whip to symbolise her freeing of the Unsullied.[280](For more on property in people, see above, section on slavery).

The television series provided a fine passage in which Tyrion Lannister attempted to explain to his jailer in the Eyrie something of ideas of personal property (though one might quibble with his use of ‘possession’ here): ‘Sometimes possession is an abstract concept. When they captured me, they took my purse but the gold is still mine’.[281] I am sure that there is much one could say about the property/contract borderline in relation to the frequent trotting out of the tag that ‘A Lannister always pays his debts’. At times this is used in a wider sense as well.**

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’,[282] 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.[283] It was also applied in other contexts, such as the acquisition of a crown, and of land.[284]

The Dothraki do not acquire property through sale, but through a system of (semi-) reciprocal gift-giving,[285] 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’.[286]

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 with 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, my 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.’[287] On personal property, it is a bit all over the place, if we take into account the episode in the television series of Ygritte taking away Jon Snow’s sword (it’s made of Valyrian steel, you know …) possibly in some sort of recompense for the ‘debts’ she says he has because she saved him. When he objects, she comes up with the head-scratcher ‘I stole it. It’s mine. If you want it, come steal it back.’[288] So is there property or not, Ygritte? Or is ‘stealing’ not a removal of property?

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 in what seems more like a personal bond than something land-related.[289]

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,[290] but is in reality a hostage for his father’s good behaviour following a rebellion against Robert I Baratheon]. Shades of King John of England, in particular.

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,[291] and Cersei tells merchants to pay usury on their own loans from the Iron Bank of Braavos.[292]

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.[293] 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,[294] 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.[295]

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.[296] 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.[297] As in Henry I’s case, however, such promises did not prevent a civil war over the issue.[298] 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.[299]

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.’[300], 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,[301] 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 (John and Eleanor of Brittany, anyone?).[302] 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?’.[303] 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.[304] 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.[305]

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.[306] Thus, by Dornish law, Myrcella should succeed to the Iron Throne before Tommen.[307]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),[308] 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’.[309] In Westeros, Cersei Lannister is unhappy with women’s exclusion from power.[310]

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’,[311] 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…’.[312] A third view is that of Aeron Damphair, who sees any such fixed succession as ‘green land law’, and demanding (and obtaining) an election, according to The Old Way, rather than a succession to the Seastone Chair.[313]

In most of Westeros, legitimacy depends on wedlock, and those born outside wedlock have ‘no name of their own’,[314] Particular simple and nature-based surnames are by custom given to bastards: in the North, for example, they are called Snow, they are called Rivers in the Frey/Tully lands, Stone in the Vale, Flowers in Highgarden, Storm at Storm’s End.[315]

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’.[316]

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,[317] 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.[318] Bastards can, however, be declared legitimate by royal order, as can be seen from Robb Stark’s legitimation of Jon Snow, sealed by himself and his lords, and the order for legitimation of Ramsay Snow, bastard of Roose Bolton, by Tommen.[319] 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.[320]

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,[321] though Dorne does differentiate the legitimate and illegitimate to the extent that it has the customary name Sand for bastards.[322] 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 rock sons (or perhaps children).[323]

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’.[324] Sam Tarly is conveniently displaced by his father by being forced to ‘take the black’, and so leaving the world of property and succession.[325] Not too dissimilar to medieval succession changes through entry into a monastery.

Wills of land appear to be allowed,[326] 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.

Obligations

Aside from ‘A Lannister always pays his debts’, which might be considered contract-adjacent, we hear little about obligations in the modern legal sense. There is mention of contract (and some form of corporate personality) with regard to mercenaries, it is noted that ‘The Golden Company broke its contract with Myr …’ [bought off by the Lyseni, with whom Myr was about to go to war).[327]

It is probably a stretch to think of this as tort, but there is some discussion of defamation in an exchange in the television series between Cersei and Tyrion Lannister. Cersei has complained that Tyrion will slander her to their father with regard to a childhood episode in which she had a servant girl beaten until she lost an eye. Tyrion responds that ‘It’s not slander if it is true’.[328]

The relative lack of obligations-talk is interesting, and certainly resonates with the comparatively late appearance of central action on contract and tort, and certainly the working out of doctrine in this area, in the English common law.

Concluding (for now) thoughts

This, obviously, is a bit of fun. There might be a nugget of a serious point or two in there, however, to do with the entrenchment of understandings of medieval law and attitudes in modern minds. SIF/GOT does not hold itself out as a portrayal of any particular real legal system, but it does, nevertheless, incorporate many legal ideas and concepts which will resonate with the legal historian (or resonate with me, at least). Fantasy world-building does often require the invention of laws and legal systems, particularly when the overall impression the author is trying to convey is one of significant disorder, bordering on chaos and anarchy. Even in a story with giants and dragons and fighting, it is hard to do without the odd statute or trial, to keep the story moving along in a rich and coherent way.

To be continued …

2014, 7/7/2024

Image courtesy of Wikimedia Commons from the wonderful tapestry rendering in the Ulster Museum, Belfast, which I visited whilst at the British Legal History Conference 2022 – so a nice legal history link!

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.

GOT: Game of Thrones TV series.

[1] (This is a set of notes I put online in, I believe, 2014, now slightly updated, as I re-read the books, in 2024).

[2] I:43

[3] I:44

[4] I:598

[5] World:1644

[6] IV:474

[7] IV:219

[8] V:35

[9] V:693

[10] V:693

[11] World: 1703

[12] World: 1797

[13] World: 6227

[14] V: 958: Prince Aegon has been trained in various ways ‘… he has studied history and law and poetry…’

[15] World:3852

[16] I:450

[17] IV:782

[18] World: 988

[19] IV:654

[20] I:456

[21] IV:444

[22] I:44

[23] I:196

[24] V:214

[25] III:310

[26] I:450

[27] World: 3358

[28] IV:232

[29] V:429

[30] I:452

[31] World: 1666

[32] IV:738

[33] IV:731,743

[34] V:848

[35] World: 5096

[36] World: 6916

[37] III: 384 ff

[38] III:441

[39] III:368

[40] II:323

[41] III:176

[42] Hereafter, GOT.

[43] GOT 1.6 ‘It’s not my law’.

[44] I, 452, 454.

[45] World: 226

[46] I:2

[47] IV:232

[48] IV:232

[49] IV:233

[50] ibid.

[51] V:848

[52] III:740

[53] III:740

[54] III:749

[55] III:741

[56] III:791

[57] III:791

[58] III 791

[59] I:408

[60] IV:744

[61] I:720

[62] I:406

[63] V:149

[64] IV:656

[65] I:453

[66] I:408

[67] III:735

[68] IV:232

[69] IV:233

[70] IV:743 Or, perhaps three men for the male aspects plus another, gender unknown, for ‘the Stranger’ who seems not to be pinned down.

[71] IV:740

[72] IV:743

[73] III:190

[74] III: 384 ff.

[75] III:385, 386

[76] III:386

[77] III:388

[78] II:119

[79] II:451

[80] III:236

[81] I:453

[82] III:806

[83] V:54

[84] II:11

[85] I:466

[86] I:702

[87] III:291

[88] The language of ‘slaves’, rather than ‘enslaved people’ is used in the books – the preference for the latter (a good development) is somewhat later than these books.

[89] V:870

[90] V:755-6

[91] V:443

[92] World: 7563

[93] I:32

[94] V:371

[95] V:89

[96] III:264

[97] V:830

[98] World: 7635

[99] III:264

[100] I:33

[101] GOT 2.2

[102] I:28; World: 7563; V:21

[103] I:28

[104] I:33

[105] World: 5035

[106] World: 5041

[107] World: 5248; 5478

[108] World: 5478

[109] World: 7649

[110] V:42

[111] V:42

[112] V:42

[113] V:664

[114] III:809

[115] III:809

[116] V:39

[117] World: 5058

[118] World: 1399, 5058

[119] World: 5248

[120] I:379

[121] II:236; II; 451;World: 1399; I:29

[122] I:468

[123] III:236

[124] I:72, 498; III:261; II:17

[125] IV:435

[126] I:751

[127] IV:435

[128] I:45

[129] II:289

[130] I:30

[131] GOT 1.1

[132] II:363, 896; III:48

[133] I:45; II:479

[134] II:819

[135] III:318, 669

[136] V:650

[137] II:474

[138] V:478

[139] I:35

[140] I:103

[141] II:474

[142] World: 571

[143] II:229

[144] III:317

[145] V:653

[146] II:581

[147] III: 364

[148] World: 90

[149] World: 90

[150] World: 6916

[151] World:1313

[152] World: 1313

[153] World: 1313

[154] II:528

[155] II:474

[156] He had bared steel against his liege lord, which should result in death, Robb said. Similarly to the Stannis/Davos situation, the Greatjon took his punishment and became loyal: I, 555.

[157] GOT 3.4.

[158] III: 417, 920

[159] III: 534, 1009 – Beric Dondarrion (eye lost) and Donal Noye (arm lost). And, in contrast to the stereotypical picture of Varys as a scented and sneaky eunuch, the Unsullied are hard cases: III: 118.

[160] I: 587

[161] See, e.g., I: 236, 282, 375, 425; II:44, 210, 240, 251, 447; III:394, 801. II, 240: ‘Something about Tyrion’s mismatched green-and-black eyes made men squirm…’. III:525 Oberyn of Dorne describing baby Tyrion:’You did have one evil eye …’ V, 620 crone bidding for Tyrion and Penny ‘His eyes don’t match either. An ill-favoured thing’. See also, inter alia : III: 678 Edmure fearing his bride will be ‘bald and one-eyed …’ and III:962 Oberyn of Dorne mocking his sister’s suitors including ‘Little Lord Lazyeye’.

[162] see, e.g., I: 236, 373

[163] I: 87

[164] IV:515, 653

[165] I:509; I:598

[166] I:495

[167] IV:515

[168] III: 262

[169] I:598

[170] I:721

[171] IV:517

[172] 1:721

[173] II:208

[174] V:727

[175] V: 565

[176] II:474

[177] III: 384 ff

[178] III:386

[179] III:231

[180] IV:173

[181] I:106

[182] I:286, 97

[183] V:155

[184] V:693

[185] II:578; World: 3852; III:83

[186] World: 3852; III:83

[187] V:142, III:83, V:511

[188] IV:276; III:83

[189] II:578

[190] I:477

[191] I:478

[192] I:483

[193] II:36, 52

[194] V:879 – though note that she was ‘mad with grief’ at the time

[195] II:583

[196] V:353

[197] V:818

[198] I:314

[199] I:736

[200] II:7; III:823

[201] V:708

[202] III:441;728

[203] IV:350

[204] III:912

[205] 1, 469

[206] III:208. III, 306: drinking tansy tea also seems to be a common practice in the riverlands.

[207] IV:191. Moon tea is used in Dorne too: IV:216.

[208] IV:234

[209] IV: 238

[210] World: 5560; III:5

[211] I:261

[212] World, 5560

[213] I:644

[214] III: 858

[215] V:42

[216] World: 1620

[217] V:429

[218] V:429

[219] World: 5065

[220] World, 3691

[221] World: 6893

[222] V:832

[223] III:441. The television show suggests the availability of young boys for molestation for those who will pay: 1.5.

[224] GOT 3.3. Margaery agreed that he had the right, as king, to do this, though she had previously seemed fairly accepting of the relationship between Renly and Loras.

[225] IV:606

[226] World: 2552

[227] I:265

[228] IV:233

[229] Varys/Littlefinger conversation, GOT 1.5.

[230] World: 5248

[231] IV:233

[232] World: 3312

[233] IV:232

[234] I:12

[235] World: 3519; V:818

[236] I:406

[237] IV:173

[238] World: 1313

[239] I:12

[240] I:14

[241] I:19

[242] III:231

[243] World: 3836

[244] e.g. IV:232

[245] I:913

[246] I:718

[247] II:39, 56

[248] II:39, 56

[249] IV:800

[250] IV: 151

[251] see, e.g. III:819, pardons temp. Tommen ‘Baratheon’

[252] I:598

[253] III:818

[254] V:42

[255] III:806

[256] I:114

[257] III:858

[258] II:11

[259] IV:233, Lord Randyll Tarly

[260] I:2

[261] IV:517

[262] Lord Randyll Tarly, IV:233

[263] 1:721

[264] II:208

[265] IV:233

[266] I:720

[267] IV:232

[268] IV:232

[269] World: 1313

[270] III:227

[271] I:2 I,114,498.

[272] I:542; IV:656

[273] I:14

[274] III:216

[275] III:5.

[276] V:849

[277] I: 652

[278] V:42

[279] II:528

[280] GOT 3.4

[281] GOT 1.6

[282] II:154

[283] II:166

[284] Balon Greyjoy objects to the idea of being given a crown by Robb Stark, on this ground, GOT 2.3, and Theon Greyjoy says that he paid the iron price for Winterfell, in that he had (apparently) had killed Rickon and Brandon Stark (though this seems to be an attenuated version of the process of paying the iron price, in that he did not kill them with his own hand) GOT 3.4. The autopoetic nature of the process is evident in Balon Greyjoy’s statement (with regard to crowns and power) that, rather than sowing, the Greyjoys ‘take what is ours’: GOT 2.3. A slightly different slant is given by Yara/Asha – ‘We take what we need’: GOT 2.8

[285] V:73

[286] I:733

[287] III:462. Go Ygritte!

[288] GOT 3.5.

[289] II:508

[290] I:12. See also I:22; I:37

[291] III:361

[292] IV:604

[293] I:259 – Tarly family

[294] World: 4395

[295] World:1637

[296] World: 1673, 1703

[297] World: 1797

[298] World: 1823

[299] III:410

[300] V:246

[301] II:470

[302] V:591

[303] II:435

[304] II:454

[305] II:320

[306] World: 6893

[307] III: 747; IV:48

[308] World: 6916

[309] World: 621, 760

[310] III:748

[311] II:160

[312] II:356

[313] IV:25, 31

[314] I:17

[315] I:17, 146, 285, 357

[316] III:52

[317] I:50

[318] I:51

[319] III: 627, 819

[320] I:62

[321] World: 6893, 6916

[322] III:431

[323] World: 5065

[324] III:52

[325] I:260

[326] II:474

[327] IV:337

[328] GOT 3/1

Contract, coercion and concubinage: a rape case from medieval Westmorland

On the Michaelmas 1402 plea roll of the King’s Bench, there is a case with things to say about both ‘criminal’ law with regard to sexual offences, and also the commercial/contractual aspects of sexual misbehaviour in the medieval period.

The case, from Westmorland in the north of England, is to be found at KB 27/566 m.21 and, via AALT, here. It is an appeal of rape, brought by Joan London of [Maulds Meaburn] against Henry del Croft of Westmorland, Sir William de Threlkeld,[i] and John his son, and Thomas de Faucet, together with John Williamsservant Threlkeld, William Cook de Threlkeld, Thomas de Bowes, chaplain, and William Aliceson de Threlkeld.

Joan said that she had been in the king’s peace at [Maulds Meaburn] on 19^th April [1402], when Henry came at about 11 pm and raped her, feloniously, deflowering her of her complete/pure virginity, and, feloniously, having carnal knowledge of her. The others were accessories.

There are a lot of standard form elements to the entry (the usual statements about pursuit etc.) and I will pass over these. What is unusual, however, is the defence. Rather than just saying ‘Not guilty’, Henry said that he and Joan, after discussion, agreed that Joan would be his concubine, in return for 6s 8d, he paid her this sum, and slept with her. He denied felony. All of the defendants were acquitted.[ii] Despite the utterly predictable outcome, (for those of us who are familiar with these cases, anyway), there are a few of interesting points:

The wording of the accusation

This is of interest for those who look at crime/sexual offences in historical context, There is one slightly unusual word here – the accusation is not just the usual rape/deflowering/virginity vocabulary, but adds pura to virginitate. ‘Purity’ is more commonly found next to ‘widowhood’, in ‘civil’ cases in which there is some argument about whether a woman did something during her marriage (and thus bringing in the ‘coverture’ rules) or afterwards, when she was able and obliged to take legal responsibility for her own actions. An interesting variant, then, and one which we might just take as suggesting some general ideas about women at different stages of life. That needs some further thought, but it’s worthy of note.

The defence

Note that this is not the familiar ‘she must have consented this time as well’ defence based on previous sex with the defendant: it is ‘she did consent in advance, and so cannot use the common law to complain about having been penetrated’.

The alleged transaction

On a more ‘crime meets contract’ theme, there is something to say about the alleged bargain here,

The narrative about the agreement between Henry and Joan has the role, in the context of the appeal of felony, of defending Henry against the allegation that he raped her (modern sense) thus the reference to her assent and her will in this matter. We might note that the assent and will are ranged with an agreement to be his concubine, not with the particular penetration with which the appeal charges Henry. This raises the issue of just what it meant to be a ‘concubine’. It is a word which comes up from time to time in legal records, often in connection with ‘priests’ women’. It is not inevitably sexual, though clearly, in this context it is. It is something which could bear greater scrutiny in terms of its implications and its interesting location on the borderline between status and contract, as this case seems to illustrate.

We must pass over the question of whether there actually was a ‘deal’, between Henry and Joan, but, as ever, even if the story was a lie, it must at least have been a plausible lie, so, what can we learn?

The deal was said to have been reached between Henry and Joan. There is no hint of the involvement of a pimp, bawd, madam, or even a family member negotiating on her behalf. It was, therefore, considered plausible for a woman to strike her own bargain with a man, to become his concubine. The entry portrays an orderly, businesslike, procedure: Henry and Joan discuss the matter (they have a colloquium about Joan becoming Henry’s concubine), and reach agreement, Henry gives her 6s 8d and Joan agrees to be his concubine (the term is not given, but this surely represented the price of more than one encounter). The deal is expressed in both unilateral and mutual terms: Joan se aggreavit and they had an agreement (concordati fuerunt). Henry took Joan as his concubine with her assent and will, and [‘only then’ is, it seems to me, implied] slept with her.

It is interesting to see the use of this businesslike, contractual, narrative in this context. Two things, in particular, strike me. First of all, to work as a defence, the story really has to place Joan as being on a level playing field with Henry, able to strike a bargain. We would need more facts about the parties to know whether that was remotely likely to have been true, though I do wonder about the tension between the two-parties-bargaining-freely version of events in Henry’s defence and the allegation by Joan that there were rather a lot of other people involved, before, during and for a month after the event. Secondly, although we are deep in the period of central regulation of ‘contracts of employment’ and wages, the terms on which a ‘concubine’ might ‘work’ were clearly not part of this area of legal prescription and enforcement. It is interesting to reflect on what this meant. Although they were ‘free from the red tape’ of the labourers legislation, and did not have to sign up to fixed terns, so that one might have thought they could leave their ‘employment’ at any time (and so refuse sex), this was not, apparently, the case. Whether or not developments towards the more coercive in employment which was covered by the labour laws had an impact upon areas like this, not covered but possibly analogous, must, for the moment, remain in the realms of speculation – but it isn’t particularly fanciful to imagine that it might have done. I note that sometimes, women may be described in legal records as ‘servant and concubine’ (e.g. here, from 1399), which may well indicate an idea of ‘concubine as employee’.

Anyway, this record suggests that a deal, even a sinful deal, was not something that could be called off, at least once money had been handed over. While I presume the common law would not have enforced such a deal in a straightforward ‘contract law’ manner, we can see that the way in which the law of felonious rape was treated in practice meant that it afforded no protection for a woman who might want to get out of such an arrangement.

Some tentative conclustions: ‘free’ contracts and contracting unfreedom

Joan’s disadvantageous position bears obvious comparison with another ‘freely contracted’ status, that of marriage, with its consequences under the emerging rules of ‘coverture’. Just like a wife, a concubine would seem to have bound herself for the future in terms of sexual compliance, so that she would not be able to succeed in an appeal of rape. The way in which Henry’s case was put – admitting sex and founding his defence on the alleged concubinage agreement – is strongly suggestive of this being accepted.

One might also compare the ‘concubine’ with the prostitute/whore (the terminology here is very difficult, but I mean somebody entering into one-off transactions). Bracton II, 415 lumps these together to some extent, as women who can be raped (albeit that this will attract a less serious punishment than rape of a virgin). Though the ‘concubine’ seems to be less disapproved of than the prostitute here, it may be that the common law’s increasing interest in and respect for contractual bargaining, possibly reinforced by ideas about ‘making the lower orders stand to their obligations’, as Robert Palmer had it, even if not strictly covered by the labour laws, left the concubine in a rather worse position than the ‘common whore’, free to transact her business on an encounter-by-encounter basis, and presumably not obliged into the future to do the bidding of her customer/master.

This case should, if nothing else, remind us: (a) that it is essential not to tell ‘de-gendered’ stories about the development of legal categories and doctrines; and (b) that material from what is now generally seen as one discrete area of legal doctrine and practice may be relevant to another. Here, we have the use by a man, against a woman, of the idea that the common law should take account of, and accord force to, private contracts. The negative effect of contract ideas upon ‘criminal’ law protections for women is not something which should be ignored by legal historians. For all of the ‘rises’ and ‘triumphs’ of the history of the law of contract, we should remember that the impact of legal development is not to be measured only with regard to the experience of (free, capable) men.

16/6/2024

[i] Could this be this man?

[ii] Joan was said to have brought a false appeal, for which she was financially liable. A jury found that she was not able to pay the damages assessed, and the former defendants now went after a man, Richard de Threlkeld, said to have helped her bring the allegedly false appeal.

A vicious beating or a vicious lie? A fifteenth century Somerset case

Content warning: infant death

Carrying on the occasional posts relating to medieval ideas about the foetus, and about pregnancy (you can follow back from here to see earlier ones, should you so desire), here is an accusation within an accusation, which might have a couple of things to say to us on this topic.

There is an entry on the King’s Bench plea roll for Michaelmas term 1412 (KB 27/606 m. 20d – here via AALT – which concerns an alleged piece of malicious prosecution, in which a group of people, including Thomas Morle and his wife, Elizabeth, accused John Cokkes and others of having taken the opportunity of Thomas’s absence on business in Bristol to break into his house in Milverton, Somerset, drag Elizabeth, who was pregnant, out by the legs and then beat her up. This beating was said to have injured her ‘so that her life was despaired of’, a detail so common as to be ‘boilerplate’. Far from ‘boilerplate’, however, was the elaboration of the damage said to have been caused: some time after this, she gave birth to her twins, who were severely injured by the beating (the back of one, and the legs of the other being broken), and died shortly after they were born. For good measure, perhaps, it was also alleged that a significant amount of property had been taken from the house, and that there had been threats against Thomas and Elizabeth, so that they dared not go about their business.

Back to the pregnancy/foetus/newborn angle, however … let’s note some interesting aspects of this…

Language

There is a ‘backdating’ of terminology here: before the birth, the twin foetuses are described using a word usually associated with post-birth life: infans. They are infantes in utero suo existentes. This does give a sense of blurring of pre- and post-birth life, I would say.

Ideas about gestation

This may not be terribly surprising, except to those who have seen the sometimes preposterous ideas about the length of human gestation in later cases on adulterine bastardy, but medieval people had an idea of the right length for a pregnancy – and it was said that the twins were born before their time. It would be nice to know if they had any idea about how a multiple pregnancy would affect length of gestation, or likelihood of survival, but, of course, that would be expecting a lot of such records.

Suggestion of post mortem examination

We know from coroners’ records that there could be an examination and description of a deceased baby or foetus, at least in terms of size, but this seems to suggest some touching and feeling to ascertain that bones were broken, which is grimly informative.

‘Spin’ strategy

We cannot, of course, know what was the truth of this tale. Was it a complete fabrication, entirely true, or something in between? If it was made up, then we must assume that throwing in the details about the damage to the foetuses, and loss of viable foetuses, would have been seen to make John Cokkes and his associates look more culpable. So – not something confirming ‘personhood’ in the foetus, by any means, but certainly suggesting value.

8/6/2024

A Cornish compensation claim

Content warning: miscarriage/abortion

Here is another snippet on that vexed question: how did medieval law regard the foetus (something I have blogged about a bit.[i]

Much of the attention in this regard – including mine – has been on the law of homicide. That’s understandable, since we tend to think of the big question being ‘was it regarded as homicide, to end the life of a foetus?’. But here, in KB 27/590 m. 15d, is a Cornish case in which the aim is not to convict a person who had caused foetal death, but to obtain compensation for a ‘tort’.

It is from the King’s Bench plea roll for Michaelmas 1408. John Archer and his wife, Alice, brought a trespass action against David Renawedyn and seven other men, accusing them of having, (on a date the same year which seems to be May 16^th, with a woman, not a defendant here, at ‘Aransawyth’[ii]), assaulted Alice, so that she miscarried (abortum fecit) to the great damage of John and Alice and against the king’s peace. They claimed that they should recover £100.

The defendants pleaded not guilty and the matter rested there, awaiting a jury. No end found just yet.

One is struck by the fact that both husband and wife brought the action. But then a married woman had to bring this sort of action in conjunction with her husband: we cannot really read into this a particular statement about the foetus being the man’s ‘property’, or the loss ‘really’ being his, since this is the way all trespass cases would have to be brought, when damage was done to the person of a woman. Unhelpful, too, for the historian, is the fact that the damage to Alice from the external force, and that from the consequent loss of the foetus, or the pregnancy, are not disentangled. We certainly can’t say that this is putting a particular financial value on the life or worth of a foetus in itself. However, it is an interesting indication that the loss to the expectant parents when a pregnancy was ended in a violent, wrongful, manner, could be calculated, and a claim for substantial compensation was plausible.

The existence of such a claim might be seen to confirm the impossibility of the homicide route with regard to a foetus, especially where the pregnant woman had not, herself, died. It could, though, simply be a case of choosing one of a number of overlapping modes of legal response to an offence. I still think much remained unclear and ‘up for grabs’ in the law on the foetus in medieval England, but there is certainly more thinking and research to be done on this point.

28/5/2024

Image – Perranporth: probably not where any of this took place, but a fine view.

[i] E.g.: here, here, here …

[ii] Not sure about this name – it looks like some mangled Kernewek to me, but someone else may have a better idea.

Procedure and pregnancy: a Middlesex appeal

The question of how medieval people regarded and valued the foetus, and whether they saw abortion as being homicide or not, was raised, and debated, quite a lot, following the Dobbs case in the United States. The opinion of those who know about medieval law has generally come down against the selective and otherwise questionable use of medieval English authority by judges in the case.[i] I have many issues with the ways in which judges in the common law world cherry-pick and simplify past legal materials, or accept without appropriate questioning the contentions of advocates regarding their meaning: the misuse of such materials in modern courts is a multi-faceted problem. One aspect of the problem, when it comes to the foetus/pregnant woman issue is the failure to take seriously the impact which procedural matters might have on the way a case appears in the remaining documents. It is all too easy to conclude that we are seeing a substantive rule, when, in fact, the ‘rules of the game’ of pleading, or ‘form of action’ may actually have dictated what could be argued or included.

A nice example (in the legal sense, thoroughly nasty if the things described actually happened) is in a 1454 King’s Bench plea roll: KB 27/771 m. 35 (see it here on AALT). This concerns an appeal (individual prosecution) against Walter Fairstede lately of London, a yeoman or glover, Agnes his wife, and William Couper, a London yeoman, brought by John Stanford, for the death of Margaret, widow of John Henry.

The accusation was that, on 26^th October, 1452, somewhere in Westminster, Walter and Agnes had assaulted Margaret and killed her. The attack was not, for once, said to have been carried with weapons, but with punches to the belly of Margaret, who was pregnant, or ‘great with child’. Both Walter and Agnes were accused of punching Margaret, Walter going first, with a right-handed punch to the left part of Margaret’s belly, and then Agnes punching her in the middle of the belly. Each of the blows was alleged to have been sufficient to kill Margaret (meaning that both assailants were ‘principals’). William was an accessory: said to have assisted but not said to have thrown any punches. Margaret was said to have died following the assault, but not immediately: she ‘languished from 26th Oct to 7^th December, 1452, and then died, in Westminster.

All of the accused were found not guilty by a jury – as ever, who knows about the truth of any of this, and who knows what the accusation was supposed to indicate, in terms of motive – a random stranger attack, robbery gone wrong, abortion (whether consensual or not) … much is beyond us. Nevertheless, there are things to consider. While we are told, more than once, that Margaret was pregnant, and visibly so – showing that this was something seen as important – nothing direct is said about the fate of the foetus. We may imagine that it would be unlikely that there would be a live birth, in the circumstances, however, and may deduce that there was no live baby, from the fact that the man bringing the appeal, described as Margaret’s relation (in fact an uncle on her father’s side), was also stated to be her heir. That would not have been correct, presumably, had she had a living child (assuming it would have been legitimate – we do not know how long Margaret had been a widow, of course)..[ii] What can we read into the non-mention of the foetus/baby? One view might be that the foetus was unimportant, so not worth mentioning. I think that the better view is that the loss of a niece’s baby would probably not have been something for which an uncle could bring an appeal, since it would be too far removed from him to be seen as his loss.[iii] So, an example of ‘form of action’ setting the limits of what might be alleged, and not necessarily saying anything about the value, or not, of a foetus, in the medieval period. This remains a very difficult question – and I do not think that there was one clear ‘medieval legal view’ (let alone ‘medieval view’) on this.

One last thing which seems to me to hint at the complexity, and perhaps tensions, of medieval views in this area is the interesting difference in the way in which the two relevant dates are given. The date of the attack is given by day, month and regnal year, but the date of death is given in the old-style ‘by reference to a holy day’ manner – as ‘the following Thursday next before the Conception of the Blessed Virgin Mary: a complicated maternity-and-foetus-related feast if ever there was one. Simply indicative of a transitional period in legal dating, or something more interesting, in terms of attitudes and concerns?

6/5/2024

[i] See this, for example.

[ii] It is possible that she did have a live-born child, which died before the proceedings were brought: I am not sure that we know the critical date for appeal right. This case is quite interesting from the appeal right point of view too.

[iii] In this case, I suppose he is the heir because there was no living child, so in a sense he gained from these events. That is not unique to uncle appeals, however.

Had Margaret’s husband not been dead, perhaps he might have brought an appeal framed in a different way.

Image: Westminster – yes, I am embracing radical anachronism. It’s symbolic of past-present confusion, or something.

The butcher, the bridge and the blame

This was an interesting one, I thought: a trespass case with a pretty distinctive defence.

KB 27/669 m. 91 puts us in Trinity term 1428, in the King’s Bench. Richard Perot of Alcestrer, Warwickshire, butcher, is being sued for assault at Stratford upon Avon, by Edward Toky.

The allegation was that, on Thursday 9^th November, 1424, Richard had assaulted Edward, with force and arms, and the usual range of weapons, against the king’s peace (so a run-of-the-mill trespass allegation). Edward claimed that his damages amounted to £20.

Richard, via his attorney, hit back. He pleaded not guilty, and gave a rather different version of events on the day in question. It wasn’t the usual boring and blank self-defence allegation. Both he and Edward had, he said, been riding their horses on the bridge over the Avon, and Edward’s horse fiercely jumped on Richard’s horse. Richard and his horse almost fell into the water, and, to save his life, and not fall into the water, Richard took hold of Edward by the neck and arms, and held on tightly, and that was what Edward was calling trespass.

So – if true, that does sound like a pretty good explanation, and suggests that a trespass claim for £20 was a bit of a stretch for Edward. But was Edward just trying it on, or was Richard’s story a pack of lies? Who can say. We can note, though, a feeling that it was a decent defence to a trespass action to say (a) I did what I did to save my life, and/or (b) your horse started it.

1/4/2024

Image – Clopton Bridge, Stratford. Ferocious horse not pictured.

More mayhem matching

The attempt to ‘stitch together’ the severed members of Year Book and plea roll mayhem cases goes on … (yes, I am pleased with that stretch of an image …) with a possible identification, from the reign of Richard III. It’s not exactly a body in a Leicester car park, but I think it solves a smaller-scale mystery, as far as we ever will.

The Year Book report, YB Mich. 2 Ric. III pl. 38 f.13b, noted here in Seipp, has ‘a man of Devon’ bringing an appeal with regard to an alleged mayhem, involving the knocking out three of his teeth,[i] and the breaking of his nose, so that he lost his sense of smell. There was some debate as to whether this (presumably the nasal aspect) amounted to mayhem: the rules did seem to suggest that neither nose injury nor loss of the sense of smell would fit those standard definitions of mayhem which tied the offence to loss of fighting capacity. As is frequently the case, we do not get a final outcome in the YB.

Looking at the relevant King’s Bench plea roll, I found a possible contender for a match, though only if we are prepared to assume that there was some change in pleading (or some alteration in the tale of sensory deprivation, as well as the county, between the court-room and the report …

This is in the KB plea roll for 1484 Michaelmas, KB 27/893 m. 69 and 69d (here and here, courtesy of AALT). It is a case from Middlesex rather than Devon, and is an appeal brought by Thomas Gate against Sir Oliver Mannyngham. The allegation was that, on Tuesday 13^th February, 1481, a certain William Palmer had lain in wait for Thomas at Westminster, and had assaulted Thomas with a knife called a ‘hanger’, held in his right hand, hitting him in the head (all of his actions, naturally, being done ‘feloniously’).[ii] It was claimed that this blow had damaged the ‘veins and nerves which illuminated the right eye of Thomas’, so that he lost sight in that eye, and that, as a result of the violent blow, one of Thomas’s upper front teeth had also fallen out. Oliver Mannyngham was, so it was said, an accessory to this felonious conduct by Palmer.

Oliver’s defence was that there had actually been an arbitration and a settlement, at Westminster on 13^th February 1483, with both Thomas and Oliver submitting to the judgment of Sir William Hastings and Sir William Huse. The (English language) arbitration award is copied, and involves a payment of 100 marks from Oliver to Thomas, for the ‘trespasses, offences and hurts’, and no further trespass action, the money to be paid in two years. So, was Thomas trying to pull a fast one, and get double recovery, making Oliver pay up for mayhem as well as the trespass settlement, or had Oliver not paid the money? There was disagreement as to whether he had paid in an acceptable way, and the case was kicked on into the next term.

It is not impossible that that case had some influence on the YB report, even if it is not ‘the one’, as it had a sensory deprivation idea, though admittedly not the sense of smell.[iii] Probably the better match, though, is one which can be seen in the next KB plea roll, KB 27/894 m. 36, here.

This one is a Devon case, and we see Edward Rudmore bringing his appeal of mayhem against John Bell, lately of Parkham, Devon, clerk, Baldwin Seller of the same, husbandman, and six others, husbandmen, a yeoman and a ‘gentleman’ (John Colebroke, lately of Chittlehampton, Devon, who might be more likely to be traceable than the ‘lesser’ folk). The allegation was that they had lain in wait for Edward at Parkham on 1^st June 1483, at about 10 a.m., and that John Colebroke had hit him across the face with a sword (worth 2s, all, as ever, ‘feloniously’). Six teeth (front ones) were said to have fallen from his mouth from the violence of the blow. The ‘across the face’ stroke in the story, as well as the Devon location, and the teeth (if we skate over the difference in number), would seem to make the identification stronger. And, though there is no mention at all of the nose/smell issue, surely a good whack across the face with a sword would be likely to strike the nose. The YB report also mentions accessory issues, which are present here – the others, apart from the sword-swinging ‘gentleman’ were present, encouraging and helping etc., in the plea roll account.

The likeliest reconstruction would seem to be that the nose/smell issue was severed (sorry!) from the rest of the appeal at some point during the pleading game. Since six front teeth would certainly work for a mayhem, on the classic definitions, the other part was not really needed. So, reasonably confident of the identification, and things to think about, both with the characters involved, and also with what to make of the attempt to include the olfactory aspect in the appeal. One for the mayhem book.

26/3/2024

[i] Despite the translation in Seipp, these are ‘anterior’ teeth.

[ii] The site of the blow brings one of those interesting insights into ‘educated lay’ knowledge of anatomy – with a translation of anticipem as ‘the fore part of the hed’.

[iii] Certainly some of the trespass/mayhem language and the arbitration procedure will be worth some further excavation.

Bracton's Sister

Legal History research site of Gwen Seabourne