just a dram

A dram is an old Scottish term for a pour of whiskey. My fics are a dram of something. Read irresponsibly.
Lovely Things

“Where is the king’s justice? Is the Eyrie not part of the Seven Kingdoms? I stand accused, you say. Very well. I demand a trial! Let me speak and let my falsehood be judged openly, in the sight of gods and men. —Tyrion Lannister

Today’s topic is justice in Westeros and medieval Europe. Justice in Westeros—or at least justice for the nobility—consists of a trial, where one is judged by lord(s). Tyrion, for example, is to be judged by little Robert Arryn. If this was a fair trial, he would have evidence presented against him and have the chance to defend himself with witnesses appearing on both sides. At any point before or during that trial, one can request trial by combat to determine one’s fate, which is exactly what Tyrion does. It’s often a fight to the death between the accused and accuser or their champions, but one side can admit guilt or withdraw the accusation upon yielding. Rarely, a Trial by Seven can be requested, in which 7 men fight on each side.

We’re familiar with trial by combat as a mode of medieval justice. It’s a hallmark of medieval inspired fantasy and popular media; it appears many times in GRRM’s series. Tyrion’s fate is determined by trial by combat twice. King Joffrey often requires disputes be settled in this way. Jaime relates that Rickard Stark demanded trial by combat. Sandor defends himself in a trial by combat.  And both Margaery and Cersei consider selecting champions to defend themselves against their charges. But just how similar are medieval and Westerosi justice systems?

Justice in the Middle Ages was in flux, drawing first on Germanic traditions and later Roman law. Trial by combat is a form of justice that was unknown outside of pre-Christian Germanic peoples, making it uniquely medieval. It is essentially a judicial duel. With the Christianization of Europe, trial by combat was also Christianized and found its way into written law codes by the 8th century. This was a method of justice that depended not on fallible man to judge but on God making his verdict known here on earth. In theory it was not might makes right, but unquestionable judicium Dei—God’s justice—which is no different from Westerosi trial by combat, where the gods’ verdict is shown through the victory of one party.

 

As justice evolved, not everyone was convinced that strength didn’t have something to do with it, however. Trial by combat was supplanted in some areas by other methods of justice in the High Medieval era and was mostly gone by the 16th century. The Church was one of the earliest groups to reject the practice: the Fourth Lateran Council (1215) expressed disapproval and Pope Honorius III requested Teutonic knights cease its use in the following year. Secular authorities rejected trial by combat too. The Holy Roman Emperor, for example, outlawed the practice in 1300, for fear that physically weak, innocent people were being killed. But the tradition survived later in such areas as England, Ireland, Scotland, and Scandinavia.

Closely related to trial by combat was trial by ordeal, which appears to have no parallel in Westerosi justice. This is yet another form of Germanic justice that relied on God showing himself here on earth. Ordeals required the accused to be placed in a dangerous situation that either required survival or speedy healing to demonstrate innocence; it often required the presence of a priest as arbiter. A common ordeal, trial by fire, required you to hold onto a hot iron, get yourself nice and burnt, and then the priest would wrap up your hand. You’d go back to plowing fields and wrestling swine, and three days later the priest would unwrap your hand to see if your hand was infected. A rotting hand meant guilt and execution or exile, but if God had intervened to heal you, you were innocent. It would be the equivalent of Daenerys’ dragons roasting people in order to see if their wounds festered or not to determine innocence.

There were many types of ordeal. Much like the trial by fire, Salic Law required trial by boiling water, where the accused stuck their hand in a boiling pot of water. Likewise, sorcerers could be put in cold water to see if they succumbed, according to Salic Law, but the process was abolished by the king in 829. The Franks also practiced ordeal by ingestion, where someone was given a whole heap of dry bread and cheese to eat, and if they choked on it, they were guilty. You might play this game with a sleeve of saltines the next time someone makes an accusation against you.

Some historians have argued that authorities knew that only the truly innocent, like Tyrion, would have chosen trial by ordeal, and therefore, once someone chose trial by ordeal, instead of confessing their crimes or settling with their accuser, authorities would rig the ordeal, so it was passable. Nevertheless, some innocent folks probably ended up in some not so nice situations thanks to Germanic justice. Westeros can be a nasty place, but the absence of trial by ordeal seems one point in their favor.

The Fourth Lateran Council forbid the participation of priests in trials by ordeal, so just as trial by combat began to die out, so too did trial by ordeal; and yet another form of Germanic justice was also on the way out—compurgation. In this form of justice, the accused took an oath and found 12 persons to swear that they believed the oath. If they couldn’t find 12 people, they were guilty. The Constitutions of Clarendon (1164) mostly abolished compurgation, as part of Henry II’s attempts to modernize, expand, and centralize the English law system under his authority. It is also through Henry’s reforms that trial by jury became common pratice.

The fact that Tyrion or Cersei or any noble person in Westeros is guaranteed a trial with judges and evidence and witnesses, seems a fairly modern, enlightened practice. While trial by jury existed in medieval Europe, it was a newcomer to the field of justice. The Late Middle Ages was a period in which Germanic law fought for dominance over the revival of Roman law, which resulted in the increased popularity of trial by jury and the inquisitional method.

In England, Henry II’s reforms and the Magna Carta (1215) secured trial by jury—generally made up of 12 men—as a feature of English justice. Medieval juries were somewhat different from modern ones, however, as they were selected because they knew the accused and accusers and knew the facts. This meant the state did not have to present much evidence for them to be able to make a judgment. This would mean a rather less involved trial than we see between Tyrion and Cersei, when witnesses and ‘facts’ are trotted out for the assembled judges.

 

Elsewhere in Europe trial by jury did not become common practice until later, but inquisitio or the inquisitional method, did become widely popular amongst churchmen and secular rulers after the 12th century. The popular stereotype of inquisition is inspired by the Spanish Inquisition, which has little to do with the method as it was employed in the Middle Ages. Like trial by jury, this system of justice was inspired by Roman law. Indeed, it is a fairly ‘modern’ system of justice, one which is still used in summary hearings in countries using common law, including the United States.

Inquisitio relies on the court to investigate the facts of the crime. Germanic law was adversarial, relying on a voluntary accusation by a witness or victim to bring the accused to trial. No accusation, no trial. Would be witnesses were sometimes afraid to bring charges, meaning many criminals were never brought to trial. In the inquisitional system, however, the court brings charges. Furthermore, in this system, judges can gather evidence from witnesses during the proceedings, and this more closely resembles Tyrion’s trial against his accuser, Cersei, than a true trial by jury, since he faces a panel of judges and a lineup of witnesses.

Of course, in an inquisitional trial, one couldn’t change systems of justice midstream and opt out in favor of trial by combat, the way one can in Westeros, but one probably wouldn’t want to. In terms of modernity and fairness, it’s certainly a step up from judicium Dei, and princes and prelates were eager to embrace this new form of justice. In Westeros, however, folks seem more willing to take their chances with the gods’ than their judges. Ultimately, we have as much evidence the failures of the king’s law and the general disorder of Westeros, as much as we do its medieval inspiration.

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