Tag Archives: law

Gwilym Carreg Ddu, or Blackstone in the Welsh press

 I enjoyed reading this little curiosity in an edition of the Welsh-language paper, Y Drych, from 1886. Here it is, in my best effort at a translation.

Blackstone and the Welsh

Sir William Blackstone was born in London on the 10th July, 1723. Although he lost his parents while he was a child, he received a good education and had every opportunity to develop his various talents. When he was young, he studied architecture and composed poetry. In 1741, he started to study law, and did so with moderate  success, until he was elected to the chair in law at Oxford University. It was the course of lectures which he gave there on the common law of Great Britain [sic] which immortalised his name. He died at the age of 57.

In his lectures on the sources of the laws of England, and influences on their formation. Although he did not devote much space to the British/Brythonic influence, what he said about the Cymry, their land and their laws, was entirely respectful.

Perhaps he was not inclined to think thoroughly about the likely effects of the unwritten laws of the druids on the large corpus of the common law, or unwritten law of the kingdom, after the Saxons and the Normans occupied the island.

When talking about the complete union of Wales and England, in the 27th year of the reign of Henry VIII, he said of our ancestors:

“Thus were this brave people gradually conquered into the enjoyment of true liberty.”

The learned lecturer admitted that the Welsh were the first of the peoples of Britain to share a deceased father’s land equally between all of his sons, as continues to be done in Kent.  The more recent and more unfair rule of the invaders made the eldest son heir to everything.  There was also the ‘Welsh mortgage’, a remarkably kind arrangement, and a just one. Its peculiarity was its ban on foreclosure, and the transfer of property to the creditor: any time he paid the money, the borrower could have his property back. In the meantime, the creditor could take all profits.

These examples of the old laws of our fathers are enough to make us regret greatly that we do not know more of them. They suggest that the Welsh had, from the time of the druids until Hywel Dda, strong ideas of fairness. It would have been a great blessing to the United Kingdom today if there had been fewer traces of the Normans, and more of the Celtic principles had remained in all of its institutions.

 

Thoughts

Well, it starts off with Blackstone, doesn’t it, but it ends up somewhere rather different and quite a lot more nationalistic. UK, be more Celtic! A fair number of druids floating around (though Blackstone does in fact get a bit druidy at times with some of his origin stories, e.g. in relation to burning women at the stake). Hywel Dda naturally present and correct. Perhaps more interesting is the enthusiasm for some more arcane aspects of Welsh property law. Very much of its time.

 

GS

15/1/2024

Photo by Catrin Ellis on Unsplash

 

Some personal (sort of legal) history

Still clearing out my home of many years, and finding many ‘gems’ from past lives. Very odd to come across something I hadn’t thought about for decades – the essay I submitted for the university admissions process, back in the deep past. A history essay, which clearly appealed, for some reason, to those making these decisions. Sure it would not have been the stammering, nervy, nerdy, interview that swung it. So thank you, Catherine the Great, I suppose! Also – in palaeographical news – my handwriting does not look like that any more!

GS

16/6/2023

 

Lecturing on Law and Laughter

One of the more interesting characters of the legal profession of the late-nineteenth century and early twentieth century was a lawyer from Denbigh, North Wales, T. Artemus Jones. Anyone who has looked into the law of defamation is likely to have come across him as the plaintiff in Hulton v Jones (1909) – the case which made it wise for writers of fiction to start off with a claim that their work is fiction, even if it coincidentally hits upon the name of a real person (and e.g. suggests he might have been up to no good with a woman other than his wife, in Dieppe). He had an interesting pathway to the legal profession, rather admirably pulling himself upwards via journalism and part time study.

Once he became a barrister, he continued to communicate to wider audiences. A newspaper report in an issue of the Denbighshire Free Press in 1907 reported on his lecture – returning to Denbigh Literary and Social Society’s Hall as a ‘local boy made good’.[i] There was ‘very good attendance … notwithstanding the inclemency of the (March) weather’, to hear Jones speak on the theme ‘The Humorous Side of the Law’. Obviously, this appeals to those of us with a passing interest in legal humour and there is also some legal historical content. So what laughs were there in matters legal, and what was the interest in legal history, as far as Artemus was concerned?

In fact, a fair amount of the lecture seems to have been taken up by discussions of legal history of a sort: a comparison of ‘now’ and ‘centuries ago’, ‘days gone past’, or the past as a bit of an undifferentiated lump. He discussed Ashford v Thornton (albeit situating the initial acquittal in the Common Pleas rather than a criminal court), oddly drew a direct link between ‘the blood feud’ and the petty jury (saying that the feud involved 12 men from each side). There was considerable use of the language of ‘barbarism’ to describe the criminal justice system of the past, as if seeing matters as a story of upward ‘progress’ to his present 9like the good Liberal he was), though, we might take a different view of the perfection of the ideas of his time, when we see that there was reported to have been applause when he remarked that ‘the punishment of whipping still existed, and he thought that, for a certain class of offences, it was an excellent remedy’.

A little baffling today but apparently regarded as amusing was a Lord Eldon anecdote: Lord Eldon ‘had said that a wife was like a tin canister tied to one’s tail’ [which does not sound complimentary!] Both baffling and groan-inducing are the great lines in response to Lord Eldon, from the Society Journal which Jones cited:

‘Lord Eldon presuming to rail

Calls a wife a tin canister tied to one’s tail;

And fair lady Ann while the subject he carried on

Seems hurt by his Lordship’s degrading comparison.

But wherefore degrading? Considered aright

A canister’s polished and useful and bright.

And should dirt its original purity bide,

That’s the fault of the puppy to whom it is tied.’

 

This was funny, right! The newspaper reports laughter.

Partly funny, partly deadly serious was his treatment of a gripe of his own age and country – critical comments by English judges on the veracity of Welsh witness. Here, Jones played to his audience: he could ‘assure them that more lies were told in the courts of London in two days than the whole of Wales in three years’. This, as might have been expected, elicited applause from the good men of Denbigh.

Going back to humour, he gave his listeners a story of a murder trial in which there had been a conviction, but then the man allegedly murdered appeared in court. Although the judge ordered that the jury’s verdict would have to be withdrawn, ‘the foreman of the jury said that the prisoner must be guilty, as he knew him for a rogue, as he had stole his bay mare three years ago’. How they laughed! Likewise, mirth was caused by amusing tales of drunk judges and judges being ‘witty’.

There was a bit of a mixed judgment in the end, by Jones, on the ‘system of justice in England’ [and yes, there is that slipping, characteristic of the period, between portraying England as separate from Wales, and speaking as if Wales was absorbed in England]. On the one hand it was ‘a pattern for the whole world’, on the other ‘there were defects in the system’. Finally, he gave his listeners some homework – to learn about the laws of their country, he recommended:

  • Memoirs of Lord Brougham
  • Memoirs of the Old Bailey
  • Dickens
  • Thackeray

 

Damn – will have to revise my reading lists now.

All in all, an interesting little insight into this ‘character’ of the law, and into the ideas of his time, about Wales, law, and humour. Probably somebody who deserves a bit more attention today, for these reasons amongst others.

GS

19/10/2022

 

[i] Intro: in the chair was the Rev. James Charles, who, reading between the lines, may have been hogging the limelight a little. In a bit of a ‘back to me’ moment, he seems to have described his own appearances as a witness, and in what sounds like some very heavy attempted humour, making comparisons between law and theology. There was said to have been laughter and applause at all of that, though, so no accounting for (early 20th C North Welsh) taste.

Image c/o Wikimedia Commons

For more on the libel case, and background on Jones, see in particular Paul Mitchell, Artemus Jones and the Press Club.” Journal of Legal History, vol. 20, no. 1, April 1999, pp. 64-68.

Law’s Panempire: a few thoughts on the Hunger Games novels

I am currently doing a bit of a farewell tour through some books and films, and last week I indulged myself in a re-read of the last books which served as out-loud bedtime reading with my kids, Suzanne Collins’s Hunger Games trilogy. We read these (or certainly the first one) before the films came out, so before the heroine, Katniss Everdeen, was inseparable from Jennifer Lawrence, though I can’t now recall the image I had of that character in that pre-Lawrence period. The books certainly kept us engaged, though, and it was with happy memories that I revisited them just now.

They are full of action, of course, and some engaging characters, but naturally enough, I found myself wondering what there was in terms of legal content. As ever with science-fiction, it is interesting to look past the tech gadgets and aliens (if applicable – not so here) to see how societies are imagined. This includes the sorts of rules and constitutions which are set out or assumed. There may be less of this in what is, in the end, an adventure story for older children, but still there are some bits and pieces it seems worthwhile pointing out.

 

District Twelve Tables? Bread, circuses and … Roman Law?

The central idea of the games and the arena, not to mention some of the names – Caesar, Plutarch, Seneca, Claudius, Coriolanus, the Capitol, and Panem itself – obviously show the influence of Rome. I can’t say, though, that I see much of the legal content which looks especially Roman. It’s rather more  akin to modern U.S. law and institutions. The only vaguely legal thing that really screams ‘classical world’ is the end of Seneca Crane – made to kill himself by taking nightlock.[i] This, though, is rather more reminiscent of the death of Socrates than the deaths of Romans who fell foul of the authorities.

 

Histories and Constitution

The story which is fed by the Capitol to the twelve districts which serve it, is that Panem was once (in ‘the Dark Days’) threatened by an  uprising against the Capitol. When the districts were defeated, one, (District 13) was obliterated, and relations between the Capitol and the remaining districts was reset. These relations, interestingly for law-fans, were governed not be a statute but by a treaty (which, I suppose, gave an appearance of consent, even though it was consent to abject subservience). The settlement included the foundation of the Hunger Games. This quotation gives the basics:

‘The Treaty of Treason gave us the new laws to guarantee peace and as our yearly reminder that the Dark Days must never be repeated, it gave us the Hunger Games. The rules of the HG are simple. In punishment for the uprising, each of the 12 districts must provide one girl and one boy, called tributes, to participate. The 24 tributes will be imprisoned in a vast outdoor arena that could hold anything from a burning desert to a frozen wasteland. Over a period of several weeks, the competitors must fight to the death. The last tribute standing wins.’[ii]

In the time covered by the books, Panem is ruled from the Capitol. There is a President (President Snow) but I suspect that he is not democratically elected.[iii] There is some idea that his powers are limited by law, [iv] but it is not clear what those limits might be, and he does not seem to feel constrained from arbitrary action, such as making death threats against family members or friends to ensure that he gets people to do what he wants.[v] Are there lawyers in this world? We do not really know. There is a hint that there are at least some sort of legal experts who might offer an opinion on aspects of the arrangements of the Hunger Games.[vi]

In the later books, we discover that some of the ‘origin story’ is false – District 13 was not obliterated, but has become a strict, underground, society, which, in its way, is as disturbing and controlling as the Capitol.[vii]

 

Capitol Offences

It is not always easy to see what is the law and what is abuse of the law on the part of the Capitol and its emanations, including the paramilitary ‘Peacekeepers’, but the overall picture is one of strict criminal law, with severe sanctions, including mutilation and death by hanging or shooting.[viii] There are also those medieval and early modern favourites, the stocks, and whipping,[ix] and some use of imprisonment.[x]

In an echo of the ‘Bloody Code’, theft and poaching offences are harshly treated, especially if they involve crossing from one’s district into the woods beyond.  ‘Hunting in the woods surrounding District 12 … is punishable by death’.[xi] All forms of stealing are punishable by death.[xii] There is, though, a broad range of possible outcomes, depending on how strictly the local authorities or Peacekeepers want to adhere to the penalties. Initially, the Peacekeepers in District 12 are not interested in punishing poaching ‘because they are as hungry for fresh meat as anybody is’.[xiii] An outside Peacekeeper, Thread, however, imposes a stricter regime and Gale is condemned to forty lashes at the whipping post for poaching a wild turkey (which, it was pretended, had wandered into the district).[xiv] In other districts, punishment may also be stricter: this seems to be the case in District 11, where, Rue reveals, eating crops is punishable by public whipping,[xv] and a boy was killed for stealing night glasses.[xvi] The law does not seem to have much room for defences, but there is some concession for mental incapacity: Coin says that District 13 would not punish as a traitor somebody who was (mentally) ‘frail’,[xvii] and Katniss herself benefits from some sort of mental instability plea, after she shoots Coin.

Treason is, unsurprisingly, treated with severity: death or removal of the tongue and enslavement as an avox seem to be the main responses. [xviii]  The scope of treason/rebellion seems to be fairly wide, encompassing whistling and setting off an anti-Capitol demonstration, [xix] and selling bows.[xx]

 

One boy and one girl …

As with so much science fiction, gender roles are essentially traditional. Thus, the miners in District 12 are all male. I am not sure I can explain, therefore, how it is that, in the Hunger Games, male and female tributes are selected to fight each other.

We do learn a little about marriage – which again seems fairly traditional, and M-F only. It is, at least, not compulsory, and free choice of spouse seems to be the norm. [xxi] There is some variation in terms of traditions, but some form of registration applies throughout, and marriage seems to result in the assignment of property to the new spouses.[xxii] In general, property seems to be state-controlled, and assigned for life only. This applies to the swanky homes given to those who are victorious in the Hunger Games as well as to the rest.[xxiii] So, sadly, I can’t say anything much about the property law of Panem.

 

Other miscellaneous thoughts

I note that, in an attempt to disrupt the Quarter Quell, Peeta (falsely) claims that Katniss is pregnant. This has me thinking about ‘pleading the belly’ in order to defer a death penalty (or torture), but it would seem that pregnancy does not stop a person having to take part in the Hunger Games, even if it does outrage those hearing about it.[xxiv]

Also of interest: there is a fair bit of questioning of what limits there might be on acceptable behaviour in war – idea of war crimes not named, but sort of there: e.g. questioning of whether it is OK to trap people, enemies and ‘collateral damage’ in a mountain tunnel network,[xxv] andy disagreements about the (effective) strategy of bomibing both Capitol citizens and then their rescuers.[xxvi]

 

Ave atque vale, Katniss

That’s about it, as far as I can see. A few bits and pieces of law, along with all the violent excitement and a rather inspiring heroine. Off they go to the charity shop, and all that remains is to say, with the great E. Trinket,

May the odds be EVER in your favour …

 

GS

30/1/2022.

Image: Sand Sculpture at Weston super Mare of The Hunger Games by Marielle Heessels

 

 

 

 

[i]

I               Suzanne Collins, The Hunger Games (2008)

II             Suzanne Collins, Catching Fire (2009)

III            Suzanne Collins, Mockingjay (2010)

II, 285.

[ii] 1, 21

[iii] I, 7.

[iv] For possible questions about the relationship between the President and the constitution, see the questioning of whether President Snow has the power to change the Quarter Quell  II, 303.

[v] II, 36.

[vi] II, 301.

[vii] compulsory military service, strict rules about food, brutal treatment of offenders, even those who did not really get the rules III, 42, 43, 57.

[viii] III, 148.

[ix] II, 221.

[x] I, 19.

[xi] II, 11.

[xii] I, 35.

[xiii] I, 6.

[xiv] II, 127, 135.

[xv] I, 245.

[xvi] I, 247.

[xvii] III, 67.

[xviii] I, 94.

[xix] II, 77.

[xx] I, 6.

[xxi] II, 55.

[xxii] II, 299; III, 262.

[xxiii] II, 7.

[xxiv] II, 309.

[xxv] III, c. 15.

[xxvi] III, c. 25.

Quamdiu Se Bene Gesserit, or, a legal historian’s view of Dune

Quamdiu Se Bene Gesserit, or, a legal historian’s view of Dune

There is a new film based on Frank Herbert’s Dune in cinemas at the moment. I am still not entirely happy with the idea of ‘sharing moisture’ with a room full of strangers, given the continued pandemic, but I dare say I will see it one day on DVD or streamed. In the meantime I thought I would re-read the books (well, re-read the first one, read the rest – I don’t think I got beyond vol. 1 as a teenager) and see what they say (explicitly and implicitly) about the legal system(s) in the Duniverse. When constructing a whole world, or set of worlds, like this, an author inevitably draws on contemporary ideas about law. They almost always also bring in (contemporary ideas about) legal history, when setting up certain sorts of ‘alien’ civilisation. I am sure there is a way I could use all of this in LH teaching, but, for now, let’s just get down a few thoughts….

[And note – book I has a glossary and Appendices – feels like home!]

Dune is set in a far-future in which there are multiple planets with human(oid) civilisation. After all sorts of war and chaos, things have come to an uneasy setllement. In the first book, this is more ‘uneasy’ than ‘settled’, but there is definitely an idea of what ought to be going on, and a lot of it is explained in terms which will not be familiar to lawyers and legal historians. The main systems of law/norms which we see are (i) what I would call the ‘general law’ – overarching rules applying to the Imperium and its constituent parts; and (ii) the specific laws/customs of the Fremen of Arrakis, a.k.a. Dune, a desert-living people, the conception of whom owes much to a 1960s US conception of Arab peoples, viewed through the lens of the film Lawrence of Arabia (1962).

The basic constitutional set-up is that there is an emperor, and a set of hereditary rulers of planets, or planetary systems, owing allegiance to the emperor (leaders of the Great Houses and the Minor Houses). We don’t hear much about the lower orders – though there are definitely slaves.[i]

An aspect of the system-building in Dune that I like is the mixing of ideas of hereditary rule with those of corporate law and structure. The relationship between the emperor and the Great Houses is complicated by the presence of a corporate vehicle, CHOAM. Shares, and corporate roles, in this huge development company go along with position in the hereditary structure. I suppose what appeals to me about this is the idea that the crown and hereditary power organisational model is not some sort of high-minded ‘noble’ thing, above the fray capitalist structures: it is all about the money, and employs whatever legal vehicles maximise profits for a limited group of people.

 

‘Law is the ultimate science’[ii]

The ‘basic law’ governing relationships here is the Great Convention (GC). 596 – GC univesal truce enforced under power balance maintained by Guild, Gt Houses and Imperium. It is not quite clear how detailed this is: is this a ‘codified’ legal world’ – should I be thinking of somethng the length of Magna Carta or something more like the Code Napoléon?

In terms of content, the GC includes rules, each beginning ‘‘the forms must be obeyed’.[iii]

  • Chief rule – no atomic weapons to be used against a human target. The penalty is planetary obliteration.[iv] Some weapons appear to be on the edge of legality under this rule, particularly the ‘stone-burner’ (radioactive, deadly, blinding …).[v]
  • Dictum familia – setting up the rules on non-prohibited assassination. Because informal treachery would be bad …
  • rules about kanly (feud or vendetta). There are strict rules. The process involves swearing kanly, and then being entitled to kill all agents of the House against which it has been sworn.[vi]

The general thrust, then, seems to be an agreement which does not aspire to genuine peace, but tries to keep a lid on excessive disorder by setting a few rules. The kanly idea has certain resonances with ideas about the early medieval period, but with no real central effort to channel people’s grievances towards compensation rather than vengeance.

Another source of law is legislation by the Landsraad, which seems to be a sort of parliament.[vii] There are also imperial Orders in Council.[viii]  And public law fans everywhere will be thrilled to learn that there is some rumbling about wanting a proper written constitution.[ix] Once he is emperor, Paul is not very keen on the idea of a constitution (which would of course, tie his hands somewhat).

‘Constitutions become the ultimate tyranny’[x]

Just begging for a ‘discuss’, isn’t it?  Jessica and Alia agonise over the law/religion/government relationship.[xi] Paul, however, is not a great fan of the law – a bit of Marxism, or some such going on here?

‘What is law? Control? … Law – our highest ideal and our basest nature/ Don’t look too closely at the law. Do and you’ll find the rationalized interpretations, the legal casuistry, the precedents of convenience. You’ll find the serenity which is just another word for death’.[xii]

For the legal historians, we have the possibility of investigating the role of custom, in particular with regard to the Fremen, and pondering again the distinction between law and custom … There is even the odd bit of jurisprudence – an undead philosopher trashes natural law and has a go at classic seminar question ‘What is justice?’.[xiii]

Other aspects of organisation are not explicitly tied to the GC or particular legislation, but seem to have the status of law. Family law and succession are clearly important. There is an idea of monogamous marriage, but also other forms of relationship amongst the ruling classes. Baron Harkonnen seems to favour young male partners, and nobody seems to be bothered. Powerful men may have a concubine, and this is a relatively respectable position. Jessica is described as the concubine, or formal concubine, or bound concubine  of Duke Leto (who is unmarried, for political reasons).  As concubine, Jessica has a degree of power and respect, and her son, Paul, is regarded as legal heir to the Dukedom, and then rightful Duke, and Alia Leto’s legal daughter.[xiv] Still, it is a bit of an unsatisfactory position, even if Leto charmingly tells her that she is actually better off because he hasn’t married her (it seems to be his choice …) as that means she doesn’t have to eat formally with him every night.[xv] The pattern is repeated in the next generation: Paul is ‘with’ his Fremen woman, Chani, but is going to marry the Emperor’s heiress, Princess Irulan. It’s OK though, because ‘this is a political thing … [and] that princess shall have no more of me than my name.’ [no sex, no kids – and the name thing shows that gender trumps rank …][xvi]

One of the groups involved in power and overthrow of power is called the Bene Gesserit – thus my title. Not quite clear to me why that name would have been chosen – it alludes to good behaviour, and for legal historians has resonance with the commission to judges that they shall keep their role as long as they do not misbehave (as opposed to serving as long as the monarch pleases, the older, pre-17th C, rule which made it simpler to remove them). This has been taken to be important for judicial independence (though it can be exaggerated, because it does nothing to ensure that those who are appointed in the first place are independent types rather than subservient ones). I am not quite sure what that has to do with the Bene Gesserit in the Dune books, who are an order of women with highly trained physical and especially mental capacities. They are associated repeatedly with another rather 17th C-resonant thing, though: witchcraft. They are forever being called witches, and we even get a very witch-hunty ciration of ‘Thou shalt not suffer a witch to live’ at one point.[xvii]

We are invited – implicitly – to contrast the laws and treachery of the rest of the universe with the honour and law of the semi-nomadic Fremen. There is more than a touch of orientalism/romanticising the ‘primitive’ about this (and before we dismiss the latter as a term we would never use now, I did notice ‘ancient and primitive law’ as a heading within the classification system at a library last week). The laws and customs of the Fremen are strange to outsiders at first, but the suggestion is that they are logical responses to their unforgiving environment, with its extreme shortage of water. I don’t think we are supposed to see the Fremen as misogynist, but some of their rules definitely show the perspective of a man of the mid-20th C. No hint of Frewomen’s Liberation …

They may be Fre, but the Fremen are not individualistic. It is all about the group’s survival, and getting and retaining water.  The overall rule is: ‘A man’s flesh is his own; the water belongs to the tribe’.[xviii] Leading on from this, those who are net takers of water without providing anything to the group may be sacrificed, and rendered down for their moisture,[xix] and the blind ought to be abandoned in the desert, presumably for similar reasons.[xx] Taking it a step further, in a sense, it was, at least at one time, the case that ‘someone caught outside the sietch without a stillsuit was automatically killed. To waste water was to endanger the tribe.’[xxi]

Despite the whole group thing, there is also some sort of individual property right in water. Paul is entitled to the water of a defeated adversary, and Jessica retains rights in the bottled water she brought with her. Giving some of it up to the others whilst in the desert will be compensated tenfold when they get to the Fremen settlement.[xxii] There are also tokens for water from the common stock, which are involved in courtship (I love you so much I am giving you the moisture captured from somebody’s squished flesh ..). There also seems to be a limited idea of property in chattels – so things belong to people, but are shared out by the leader when somebody dies.[xxiii]

Keeping one’s word is a big deal, and there is a consciousness of being especially honourable in this respect. Contracts are, of necessity, oral.[xxiv] [No specialty rule for the Fremen …]

The Fremen use trial by combat not (just?) for things we would think of as legal, but to determine truth, under the ‘amtal rule’.[xxv]  Combat seems to be an all male affair,[xxvi] and is to the death. Intriguingly, there is an echo of medieval trial by combat procedure, in that it has to be ensured beforehand that Jessica, who has the special powers of a Bene Gesserit ‘witch’, will not put a spell on a combatant.[xxvii] There is also some form of ordeal – as when Jessica shows she is fit to be a Reverend Mother (this ordeal rather resembling the ordeal of the bitter waters, Numbers 5:11-31).[xxviii] Ordeals are not confined to the Fremen: Paul is also tested by a Bene Gesserit Reverend Mother, to check his humanity (didn’t quite get that …) in a fancy process involving a poison needle and a box of (artificial) pain (if you can have artificial pain ..). Bit of a step up from hot iron, ploughshares and holy morsels of medieval European ordeals. Interestingly this is not founded on an appeal to God, but on psychological understanding of what humans and animals would do differently.[xxix]

Anyway, back to the Fremen. Combat is also the way one leader takes over from the last. The Fremen do not have hereditary leadership, but rather the strongest person (well, man) leads: ‘the one who brings water and security’.[xxx] Paul manages to change the rule, so he doesn’t have to kill Stilgar to lead. Instead, he has Stilgar go through what looks like a homage ceremony, kneeling, handing over his knife, swearing fealty.[xxxi] Hmm – doesn’t sound that Fre to me …

Except there is relatively Fre love. For the men anyway. And assuming that they like women. At least there is a convention that women ‘are not taken against their will’.[xxxii]  Nevertheless, there are certainly situations in which men get to do the choosing as to relationships – we see this after (15 year old) Paul beats Jamis in combat, and gets to decide whether to have his widow as his woman or his servant, or free her.[xxxiii] And families appear to decide who a Fremen woman will marry (relatively young).[xxxiv] So – not as fre-ly consensual as all that. Another aspect of Fremen Family Law which emerges is that there is a rule against incest: the death penalty (hanging on a tripod) applies to incest.[xxxv] Exactly what amounts to incest is unclear, beyond the example of brother and sister which is the matter in hand in the passage relating to this law. One would have thought that the structure of society would have meant quite a lot of in-marriage within tribes, so the rules would have to be restricted to a small number of banned relationships.

One practical issue which is not addressed is how exactly initmacy works – I don’t mean the complex business of getting into somebody’s stillsuit, but the water issue. They are all so cautious about losing moisture, but there is the issue of, well, fluids involved in ‘the huddlings of sex’,[xxxvi] isn’t there?

All of which has wandered off the point a bit – ah well, this is a work in progress, and I shall revise and resubmit after I have read some more.

 

[Miscellaneous points – couldn’t find an obvious place to put these, but they need to be in here somewhere …

  1. Everyone seems to be off their face on the addictive drug spice/melange all the time … Is that any way to run a universe?
  2. They have ruffs – ruffs![xxxvii] Sorry – they are never coming back, however far in the future. I make no secret of my extremist anti-ruff stance … Preposterous!]

 

GS

6/11/2021

Updated 19/11/2021, after reading Book III

 

 

[i] I: 39. And obviously he does say ‘slaves’ rather than ‘enslaved people’. 1960s.

[ii] I: 252 ‘Thus it reads above the Emperor’s door’.

[iii] I: 596.

[iv] I: 514.

[v] II, 55.

[vi] 100, 161, 517.

[vii] II: 75

[viii] II: 76.

[ix] II: 76.

[x] II, 76.

[xi] II: 252.

[xii] II: 249.

[xiii] II: 151 – Duncan Idaho, a fighter turned zombie type of thing (generally positive character) says of natural law that it is a ‘myth’ that ‘haunts human history’. II: 156 is his go at justice. Fair to say he has no problem with dictatorial power.

[xiv] I: 54, 57, 589.

[xv] I: 54.

[xvi] I: 561.

[xvii] III:58

[xviii] I: 241.

[xix] I: 238, 316-7.

[xx] II: 242. Cue a nice bit of legal tricksiness from Paul – he loses his eyes, but initially argues that because he can see with his mystical powers, he doesn’t have to be desert-ed. In the end though, he surrenders to the law, to become properly Fre (though also, to be fair, properly dead). The Fremen Law about sending the blind off into the desert is expressed as consigning them to Shai-Hulud (the great worm) in III:39.

[xxi] III: 286.

[xxii] I: 349, 351.

[xxiii] I: 354.

[xxiv] I: 320.

[xxv] I: 337.

[xxvi] Possibly a little inconsistent with the existence of Fremen amazons – II: 111?

[xxvii] I: 340.

[xxviii] I: 401.

[xxix] I: 6-9.

[xxx] I: 328.

[xxxi] I: 489.

[xxxii] I: 330.

[xxxiii] I: 389.

[xxxiv] III:290.

[xxxv] III:113.

[xxxvi] I: 332.

[xxxvii] II:250. It is a foppish traitor wearing one, mind.

Image: sand! (sadly no pictures of giant worms to be found …) Photo by Matteo Di Iorio on Unsplash

Gender in word and deed

Law is, as we all know, a wordy thing. Its rules, pronouncements, rulings, are bound up with the words in which they are expressed. Working across the different languages of English and Welsh legal history involves engagement with some issues which are properly in the domain of the linguist, which should encourage caution, but at times they cannot be avoided. One of these issues is that of gender. The convention of linguistic gender is widespread. Perhaps it is often not particularly important, but when one is studying medieval women, it deserves attention.

The issue comes up in different ways. One is disputes about whether a masculine word should be taken to apply to women as well as men. In the unattractive phrase found in 19th and 20th C writings, does ‘the masculine embrace the feminine’? Thus the disagreements as to whether women should have been considered to be within the protections given to a liber homo in Magna Carta, and wrangles as to whether ‘heirs’ should be understood to ‘embrace’ ‘heiresses’[i]  Another way in which linguistic gender v. sex/gender in reality arises relates to the ‘feminisation’ (or not) of texts and provisions. I have been pondering this lately, in the context of pardons.There are two interesting, and contrasting, aspects of pardon formulae to mention here,[ii]  one relating to sorts of offence (specifically, rape), and the other to roles within the criminal justice system (specifically, approvers).

From at least the late fourteenth century, pardons which cover more than one specified offence commonly exclude from their ambit treason, homicide and the rape of women.  These offences are, one presumes, held up as too serious to be pardoned as a ‘job lot’ with any other transgressions an offender might have committed in a particular period. I have noted that ‘rape of women’ might still be included when the person receiving a partdon was a woman. This seems interesting because felonious rape was, at this point, and until very recent times, a ‘male on female’ offence. Women might be accessories, to felonious rape, or to ‘ravishment’, but not principals. Had the formula been devised with female offences in mind, it is hard to believe that it would have included this particular exclusion. I find it interesting, and telling in terms of the relationship between women and the law, that the formula was adopted, unchanged in this respect, when the ‘pardonee’ was a woman.

One gender-adjustment is made in these same pardons, again from at least the later fourteenth century.  In the original, ‘male’ version of the wording, mention is made of the possibility of the potential ‘pardonee’ acting as an approver – one who confesses an offence, but hopes to avoid execution by inculpating others, appealing them and obtaining a conviction.[iii] When the ‘pardonee’ is female, this word is feminised – so ‘probator’ becomes ‘probatrix’.[iv] Fair enough, according to the linguistic/legal rules of the day, one might think, since ‘misgendering’ might cause an indictment to be held insufficient. The odd thing is, though, that acting as an approver was a ‘men only’ thing. All the evidence suggests that, because approvers had to be able to engage in trials by battle, and because women were not thought capable of fighting such judicial duels, they were never approvers of this sort. Thus, the feminised word had no attachment to the reality of legal process. It is unanswerable, of course, but I do wonder what was going on in the minds of the clerks drawing up these pardons. Was it an automatic translation (the medieval in-language equivalent of Google translate?)? Is it evidence of a rather radical (even performative?) disinterest in women and the ways in which the law positioned them as different and unequal?  And does this have anything to say to existing scholarship on gender roles in the pardoning process (queens interceding, mercy as a bit on the effeminate side etc. etc.)? Gendered food for gendered thought.

GS

15/6/2021

[i] I have a bit of a go at these in c.1 of Women in the Medieval Common Law.

[ii] On later medieval pardons, see especially Helen Lacey, The Royal Pardon: Access to Mercy in Fourteenth-Century England. (Woodbridge, Rochester NY: Boydell & Brewer, 2009).

[iii] For a masculine version, see, e.g., this one.

[iv] See, e.g,, this one.

Picture – well, if you have to ask…, it’s a quite brilliant reference to Lynn Anderson’s Country and Western classic ‘(I beg Your pardon, I never promised you a) Rose Garden)’ – one of the great rhymes in popular song….

Photo by Max Berger on Unsplash

Semen and semantics – considering legal metaphors[i]

A little reading this morning on law and metaphor, as I think about the paper I need to write for the SLS conference in September,[ii] which is going to look at bastardy, legitimacy and law/legal methods (a bit more on it here). Not surprisingly, others – lawyers and legal academics – have considered the issue of metaphorical talk in law, though, luckily, not the precise issue I mean to discuss.

Metaphor is an important theme for those of us interested in the history of women and law – especially in relation to coverture, so it is something which has been on my mind quite a bit in recent years. The bastardy angle is slightly different though – I want to think a little more expansively about the links between some of the problematic metaphors and expressions used in relation to bastardy and legitimacy (especially the ‘born within the four seas’ tag, in relation to adulterine bastardy,  but others too) and the process of ‘legitimate’ legal development, considering metaphors of (male POV) reproduction (and its impossibility), ‘father figures’ in law and legal history.[iii] In 20 minutes. Will it work, or will I end up getting too far into areas (language, jurisprudence) of which I know very little? We shall see.

My general reading so far has highlighted the sheer number of doctrinal tests which ‘get metaphorical’ – in all areas, but perhaps especially on the ‘civil’ side). Writings highlight their utility or problems, but there is probably quite a lot to say about their use as display within the legal profession and to/by its academic associates.

One thing I have noticed in my reading up to now is the difficulty people seem to find in writing about legal metaphor without using metaphors in that discussion itself. For example, this one at 257 states that  ‘[l]egal discourse is pregnant with metaphor., ’[iv]  this one (at p. 8) discusses metaphors ‘taking root’ in legal and other language, while this one, is generally wary of legal metaphors, but can’t resist (at 19) referring to a ‘seminal judgment’. That last one is a term I dislike – I know that semen-seminal could be interpreted generally, as ‘seed’/seedy (OK, I know, ‘seed-related’), but let’s be honest, sunflower seeds are not the first sort of seed that comes into anyone’s head in relation to those words. (And quite apart from the gendered sperminess of it, it has a rather uncritical aspect to it, justifying the process of legal development as somehow inevitable).[v] I certainly need to do some more thinking about how the apparently morally-neutral biological idea of the ‘seminal’ judgment relates to the morally-inflected legitimate procreation metaphors seen in some other places.

(And a final random thought – what would we call an ‘Ockham’s Razor’ for metaphors?).

GS

7/6/2021

[i] (I know – tabloidy title: never claimed to be classy …)

[ii] (seems a long way off but I already know I am going to have a large batch of marking in August, and, well, a break after the current lot might be quite nice/necessary if I am not going to collapse)

[iii] Thinking about this now, the main rivals to the fatherhood metaphor for legitimate legal development are probably that of botanical growth, that of rivers  and that of orthodoxy/heresy. Also n.b. the absolute ‘metaphor bingo line’ would be refs to fatherhood + ‘seminal’ + legitimacy.

[iv] Ah – takes me back to the ‘negative pregnant’ in medieval pleading …

[v] Maybe it’s compound metaphor as well, since presumably semen came to be used for … well … semen … before the motility of sperm was observed (otherwise, clearly, the people who choose words would have gone with something a bit more tadpoley). I can see I have work to do …

Photo by Erik van Anholt on Unsplash

Star Trek: The Legal Generation?

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

See the source image

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

 

Crime, trial  and punishment

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

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

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

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

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

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

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

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

 

Persons

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

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

 

Misc.

A couple of others worth mentioning …

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

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

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

 

‘The Trial Never Ends…’

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

GS 12/12/2020

Law’s Federation: the trials of Captain Kirk

Trials in Star Trek

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

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

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

Looking forward to more Final Frontier Laws …

to be continued.

16/7/2020

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

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

Part II

Substantive Law

 

D: Criminal Law

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

Treason

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

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

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

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

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

Homicide

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

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

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

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

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

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

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

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

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

 

Sexual offences

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

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

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

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

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

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

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

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

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

 

Piracy and smuggling

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

Offences of dishonesty

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

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

 

Punishment for crime

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Abbreviations

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

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

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

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

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

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

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

Gwen Seabourne

28/12/2014