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What if Trials by Combat really do prove guilt or innocence?

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1 hour ago, Damon_Tor said:

That depends entirely on your point of view. And directly relevant to the situation here, there's the concept of Divine Right.

The codification and enforcement of criminal law isn't really a subjective thing. During the medieval period justice was based mostly on civil/common law, even in matters like murder. There was no state (in a modern sense) to enforce laws, so all cases had to be brought by the aggrieved party. Law was 

There are exceptions in the books, like automatic death for deserting the Wall, but such clear, proscriptive justice is unusual in a medieval setting. 

This general assumption of grievance-based justice is why it's anachronistic to think of things in terms or legal or illegal. Those concepts are a product of proscriptive justice administered by a state, and that just didn't exist in the medieval period the way we think of it today.

Edited by cgrav

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14 minutes ago, cgrav said:

There are exceptions in the books, like automatic death for deserting the Wall, but such clear, proscriptive justice is unusual in a medieval setting. 

And as we've seen, even that had wiggle room.

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14 hours ago, cgrav said:

Of course we could also say that Tyrion and Tywin ultimately acted as their own champions.

Oh, I like that. Tyrion uses a champion the first two times, then when that fails he does the deed with his own hand. Perhaps this says something about his character development through the rest of his series, he does murder Nurse himself in Tyrion XI ADWD

"Sweet fresh water didn't help Nurse." Poor old Nurse. Yezzan's soldiers had tossed him onto the corpse wagon last night at dusk, another victim of the pale mare. When men are dying every hour, no one looks too hard at one more dead man, especially one as well despised as Nurse. Yezzan's other slaves had refused to go near the overseer once the cramps began, so it was left to Tyrion to keep him warm and bring him drinks. Watered wine and lemonsweet and some nice hot dogtail soup, with slivers of mushroom in the broth. Drink it down, Nursey, that shitwater squirting from your arse needs to be replaced. The last word Nurse ever said was, "No." The last words he ever heard were, "A Lannister always pays his debts."

This isn't exactly traditional character development, but we do see he's becoming more independent and is following the Stark way of swinging the blade himself. Earlier in the series he has others do all of his justice/vengeance killings for him, like a true Lannister. He has Bronn kill Symon Silver Tongue, he has goldcloaks kill Allar Deem (or at least he orders these killings) but now he is taking action and finding his own justice/vengeance. I think this begs the question, could Tyrion secretly be a Stark?

 

3 hours ago, cgrav said:

If it were a simple matter of black and white culpability then the Hound as a character would be pointless. There is no redemption without guilt, remorse, and atonement. 

Boom! Drop the mic...

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8 hours ago, cgrav said:

During the medieval period justice was based mostly on civil/common law

GRRM has described his system as basically late medieval English common law, but it's actually a lot more primitive than that. What Westeros has is very early medieval—more like pre-codification Germanic tribal law, transplanted into a Norman feudal setting, but without any of the English or French legal traditions that you'd expect to go with that.

Common law is, most importantly, based on deciding cases by looking for precedents in some source like Bracton and the Year Books. Westerosi law is nothing like that—when not based on combat, judgments are decided based on primarily pragmatic considerations at best, the liege's whim at worst. The only time I can remember anyone asking a Maester to look up precedents was Rodrik examining Ramsay's succession claim to Hornwood, and he had a foregone conclusion he wanted to justify, and when he reluctantly concluded that he couldn't do so, they attacked Ramsay anyway because what he was doing with Lady Hornwood was obviously wrong.

Common law is also  based on professional judges, and grand and petty juries, and legal experts (whether in an adversarial or inquisitorial capacity). Professional judges in fact predate the Plantagenet common law for centuries, in both England and France. In Westeros, all cases are heard by the liege, or occasionally the liege empowers an ad hoc panel. There's no professional judges, no juries, and the closest thing they have to lawyers is Maesters acting as a sort of clerk.

Common law is called "common" because you should expect to face the same justice in Wessex as in York. Westerosi justice is different in important ways between the Crownlands and the North.

Really, even Alfred the Great in the 9th century would find Westerosi law to be so primitive it's hardly worth calling law at all.

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1 hour ago, falcotron said:

Really, even Alfred the Great in the 9th century would find Westerosi law to be so primitive it's hardly worth calling law at all.

Exactly. I agree with Alfred that "law" is not the right term to use when talking about any medieval trial process. It's only "civil law" in the sense that it's two people with opposing claims, rather than a state representing itself against an accused. If no survivor was aggrieved by a person's murder, then there was no claim brought and no trial conducted. Or if no survivors remained to be aggrieved. 

Edited by cgrav

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3 hours ago, cgrav said:

Exactly. I agree with Alfred that "law" is not the right term to use when talking about any medieval trial process. It's only "civil law" in the sense that it's two people with opposing claims, rather than a state representing itself against an accused. If no survivor was aggrieved by a person's murder, then there was no claim brought and no trial conducted. Or if no survivors remained to be aggrieved. 

Ah, I thought you mean "civil law" in the other sense. Sorry for the confusion. (It's more than a little annoying that our two major legal systems are called civil law and common law, and then within common law the two major domains are called civil law and criminal law…)

Anyway, Alfred definitely would use "law" to talk about the medieval legal process that he created somewhere around 890, he just wouldn't have thought Westeros's system was deserving of the same term. Well, I suppose he would have said "dom" or "doom", because he didn't speak modern English, it not being invented yet. And he would have had a hard time reading ASoIaF since I don't think it's been translated into Early West Saxon. And he probably wouldn't have been nearly as good at literary criticism as at kinging. Really, I just like to imagine what Alfred would say about a fictional world so that I can agree with him, because he was a pretty sharp guy and pretty cool for his era. :)

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20 hours ago, The Sunland Lord said:

And they are allowed only for nobility, so in a way the winner (the accuser or accused) owes the other winner (combatant) a favor, or his life.

Hypothetical: does being attainted remove someone from the ranks of nobility, or just whatever titles/knighthood they might have? It would be amusing if someone were to demand a trial by combat from the crown, and whomever is sitting on the throne just says, "You are henceforth attainted, and, thus, ineligible for trial by combat. Now, about your actual trial..."

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2 hours ago, DominusNovus said:

Hypothetical: does being attainted remove someone from the ranks of nobility, or just whatever titles/knighthood they might have? It would be amusing if someone were to demand a trial by combat from the crown, and whomever is sitting on the throne just says, "You are henceforth attainted, and, thus, ineligible for trial by combat. Now, about your actual trial..."

I am not aware of an example like this. 

There was Aerys, who has chosen fire as his champion against Rickard Stark. We all know the only way how that can turn out. So here doesn't count one's being noble or not (Lord Rickard surely was a nobleman), but mockery of the defendant's rights. 

In principle, the accuser, no matter how much he wants the accused dead, accepts the demand of trial by combat.

Lysa Arryn, for example, no matter how disturbed, and no matter how much her son Robert wished the dwarf to fly from the Moon Door, accepted Tyrion's demand and released him after his champion won. 

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6 minutes ago, The Sunland Lord said:

I am not aware of an example like this. 

There was Aerys, who has chosen fire as his champion against Rickard Stark. We all know the only way how that can turn out. So here doesn't count one's being noble or not (Lord Rickard surely was a nobleman), but mockery of the defendant's rights. 

In principle, the accuser, no matter how much he wants the accused dead, accepts the demand of trial by combat.

Lysa Arryn, for example, no matter how disturbed, and no matter how much her son Robert wished the dwarf to fly from the Moon Door, accepted Tyrion's demand and released him after his champion won. 

Agreed, but it would seem that only a direct lord or the crown itself could attaint someone.  I suppose if Ned had apprehended Gregor somehow, we'd have an answer to this question.  What the hell would Ned do if Gregor demanded trial by combat?

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10 minutes ago, DominusNovus said:

Agreed, but it would seem that only a direct lord or the crown itself could attaint someone.  I suppose if Ned had apprehended Gregor somehow, we'd have an answer to this question.  What the hell would Ned do if Gregor demanded trial by combat?

Interesting. I think if the Mountain was captured alive and demanded a trial by combat, Ned would've approved.

 

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59 minutes ago, The Sunland Lord said:

Interesting. I think if the Mountain was captured alive and demanded a trial by combat, Ned would've approved.

 

Which brings up another question: what about multiple accusers?  If say, every survivor of Gregor's attacks were to make individual accusations, could Ned just force Gregor to fight champion after champion until somebody finally killed him?

Then again, given that Gregor is ultimately killed in trial by combat, it would be amusing if Ned writes to Dorne, and asks if Oberyn would be champion against Gregor, but for the most minor accusation possible, like butchering livestock.  Gregor wins, but its poisoned, and then Ned accuses Gregor of every other crime, and offers another trial by combat.  "Ser Beric, would you kindly stand several feet away from Ser Gregor and wait for him to die?  Feel free to poke him with Prince Oberyn's spear, if you like."

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8 minutes ago, DominusNovus said:

 "Ser Beric, would you kindly stand several feet away from Ser Gregor and wait for him to die?  Feel free to poke him with Prince Oberyn's spear, if you like."

:laugh: That's hilarious. But Ned would either never think of the option or would feel it was too dishonorable to justify.

10 minutes ago, DominusNovus said:

Which brings up another question: what about multiple accusers?  If say, every survivor of Gregor's attacks were to make individual accusations, could Ned just force Gregor to fight champion after champion until somebody finally killed him?

Also pretty dishonorable for Ned to justify.

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6 hours ago, DominusNovus said:

Hypothetical: does being attainted remove someone from the ranks of nobility, or just whatever titles/knighthood they might have? It would be amusing if someone were to demand a trial by combat from the crown, and whomever is sitting on the throne just says, "You are henceforth attainted, and, thus, ineligible for trial by combat. Now, about your actual trial..."

The literal meaning, IRL anyway, is to declare someone guilty of a crime without judicial process. The US Constitution, for example, contains an explicit prohibition on "bills of attainder", which are acts of Congress that declare criminal guilt.

So attainder would essentially bypass the need for any trial.

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8 hours ago, DominusNovus said:

Hypothetical: does being attainted remove someone from the ranks of nobility, or just whatever titles/knighthood they might have?

Under English law, attainder does mean you're no longer noble. In fact, what it literally means is that by staining yourself, you've made yourself ineligible for all civil rights, which means the king can do anything he wants to you at that point.

The "corruption of blood" that goes with that stain also means that your children are no longer your heirs (unless they want themselves to be automatically attainted as well), which has the effect that nobody can even stand up for you.

Of course we don't know if it works the same way in Westeros, but I think GRRM wouldn't have used the word "attaint" if he didn't mean it this way. (In fact, he probably wanted the specific associations with the writs of attainder that drove the second half of the War of the Roses.)

2 hours ago, cgrav said:

The literal meaning, IRL anyway, is to declare someone guilty of a crime without judicial process. The US Constitution, for example, contains an explicit prohibition on "bills of attainder", which are acts of Congress that declare criminal guilt.

That's a slightly different issue. Under common law, attainder can be by confession, by verdict, or by process, and it's only the last one that the Constitution bans. Basically, Parliament could (until 1870) pass a bill specifically attainting you for a crime you haven't been convicted of (or even technically charged with), and you become a fugitive from justice and lose all relevant civil rights. Congress (and the States) can't do that. But they could still make attainder a punishment for a crime, so that anyone pleading guilty to or being convicted of that crime in the future would be attainted.

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6 hours ago, DominusNovus said:

What the hell would Ned do if Gregor demanded trial by combat?

I suspect Ned would want to allow it, but I'm not sure if he legally could do so without first reversing the attainder, which he might not want to do.

Henry Tudor wanted Parliament to attaint all the nobles who'd fought for the wrong side but then allow them to retain their titles anyway so long as they paid a huge fee every year. Parliament decided they couldn't do that, and instead reversed all attainders and passed conditional bills of attainder saying that the nobles were not attainted, but would be if they didn't pay the fines.

But maybe the Hand can grant trial by combat anyway to someone who doesn't have the legal right to it? Who knows; that whole question is so far outside English legal tradition that we can't really look for parallels.

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31 minutes ago, falcotron said:

Under English law, attainder does mean you're no longer noble. In fact, what it literally means is that by staining yourself, you've made yourself ineligible for all civil rights, which means the king can do anything he wants to you at that point.

The "corruption of blood" that goes with that stain also means that your children are no longer your heirs (unless they want themselves to be automatically attainted as well), which has the effect that nobody can even stand up for you.

Of course we don't know if it works the same way in Westeros, but I think GRRM wouldn't have used the word "attaint" if he didn't mean it this way. (In fact, he probably wanted the specific associations with the writs of attainder that drove the second half of the War of the Roses.)

That's a slightly different issue. Under common law, attainder can be by confession, by verdict, or by process, and it's only the last one that the Constitution bans. Basically, Parliament could (until 1870) pass a bill specifically attainting you for a crime you haven't been convicted of (or even technically charged with), and you become a fugitive from justice and lose all relevant civil rights. Congress (and the States) can't do that. But they could still make attainder a punishment for a crime, so that anyone pleading guilty to or being convicted of that crime in the future would be attainted.

Excellent background info, thanks.

19 minutes ago, falcotron said:

I suspect Ned would want to allow it, but I'm not sure if he legally could do so without first reversing the attainder, which he might not want to do.

Henry Tudor wanted Parliament to attaint all the nobles who'd fought for the wrong side but then allow them to retain their titles anyway so long as they paid a huge fee every year. Parliament decided they couldn't do that, and instead reversed all attainders and passed conditional bills of attainder saying that the nobles were not attainted, but would be if they didn't pay the fines.

But maybe the Hand can grant trial by combat anyway to someone who doesn't have the legal right to it? Who knows; that whole question is so far outside English legal tradition that we can't really look for parallels.

Why on earth would he want to allow Gregor to appeal to trial by combat? If Ned has a legitimate way out of allowing the most dangerous man in the Seven Kingdoms to kill his way to an innicent verdict, I have to think he'd take it.

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On 12/09/2017 at 11:25 AM, chrisdaw said:

For Tyrion's guilt, that which seemingly can not be because he has contrary POV thoughts (one actually, Sansa must have done it), the false narration of that is seeded in the very start of the series.

That Shae doesn't love him is the obvious realisation of this line. That he killed Joffrey is another. However when it suits him, that is he wants to hurt Jaime, he admits to it. And from there admits to it more and never denies it again.

Added into the bargain is GRRM got Tyrion well and truly drunk for the occasion, making a point of it, starting him drinking in the morning. Temporary memory loss from alcohol.

For some foreshadowing.

Tyrion doesn't get eaten by a bear, just kidnapped by one in Selhorys.

Finally he tipped the wine, and there's not a reasonable explanation for him to have done so. And GRRM just let that sit.

If it is the case Tyrion poisoned Joff, it would be in keeping with the kinslaying way of things if he is to die by poisoning. He was not ready to go when he sat before Illyrio and was offered what he believed were poison mushrooms. He was on the brink but decided no. Wait for that scene to repeat, and for Tyrion to be ready the next time.

That Gregor murdered Elia, Aegon and Rhaenys is immaterial, he isn't on trial.

Are you suggesting that Tyrion did poison Joffrey?  Temporary loss of memory doesn't really hold here as we see the events through his own POV and there are no odd breaks or time skips that happen when you are on a bender: he may be drinking but he knows what's going on around him and what he's doing himself.  Plus temporary memory loss wouldn't explain why we never see him planning the murder or why we have Sansa's smoking gun hairnet that Olenna Tyrell fiddles with.  There's no basis for an unreliable narrator here.

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On 9/11/2017 at 7:51 PM, Seams said:

On another thread, @DominusNovus picked up on something I had written about Ser Gregor winning the trial-by-combat over Oberyn Martell. Technically, as Cersei's champion, he was proving Tyrion's guilt as the murderer of Joffrey. But Oberyn had made the fight a referendum on Ser Gregor's treatment of Princess Elia and her children. So did Gregor "prove" his own innocence by winning the fight, even though he confessed to raping and murdering Elia?

Does GRRM want us to draw a conclusion about trials by combat, and whether they are accurate methods for determining guilt or innocence?

Which other examples do we have?

Tyrion is championed by Bronn at the Eyrie, where he defeats Ser Vardis Egen.

Sandor Clegane vs. Beric Dondarrion leads to exoneration for The Hound in the death of Mycah, the Butcher's Boy.

Ser Robert Strong is in line to represent Cersei in her upcoming trial.

We also have the Dunk & Egg trials as examples, although one is a Trial of Seven.

And DominusNovus pointed out that King Aerys subjected Rickard Stark to trial by combat with the Targaryen champion, fire.

We have reason to believe that Tyrion had nothing to do with the catspaw who brought the dagger to Bran's chamber at Winterfell. So the outcome of that trial seems valid.

The reader never "saw" Sandor kill Mycah. Is it possible he didn't do it but claimed he did? We were later told that the butcher thought he had been given a bag with pieces of a slaughtered pig in it.

Is it also possible that Gregor didn't abuse and kill Elia? Or does the combat and Clegane's victory have nothing to do with Oberyn's insistence on reframing the trial to focus on Clegane?

 

No 

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11 hours ago, the trees have eyes said:

Are you suggesting that Tyrion did poison Joffrey?  Temporary loss of memory doesn't really hold here as we see the events through his own POV and there are no odd breaks or time skips that happen when you are on a bender: he may be drinking but he knows what's going on around him and what he's doing himself.  Plus temporary memory loss wouldn't explain why we never see him planning the murder or why we have Sansa's smoking gun hairnet that Olenna Tyrell fiddles with.  There's no basis for an unreliable narrator here.

There doesn't need to be time skips, every action in POV doesn't have to be acknowledged and isn't. He didn't plan it, he had the poison on hand, as he does in ADWD. And regardless of if it was Tyrion or not Olenna or any of hers didn't do it, she planned to but Mace's present ended that plan.

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1 hour ago, chrisdaw said:

There doesn't need to be time skips, every action in POV doesn't have to be acknowledged and isn't. He didn't plan it, he had the poison on hand, as he does in ADWD. And regardless of if it was Tyrion or not Olenna or any of hers didn't do it, she planned to but Mace's present ended that plan.

Indeed. Why would GRRM leave that little nugget out of Tyrion's POV. Makes all the sense in the world

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