The Law of Game of Thrones

[Editor-in-Chief’s Disclaimer: This post doesn’t have much to do with Maryland law or appellate law. But with the large number of lawyers who watch it, we’ll make an exception for “Game of Thrones.”]

By Michael Wein

The season four premiere of “Game of Thrones” begins this Sunday, April 6, 2014 (with a free HBO weekend on most cable providers). The past three seasons have displayed why Game of Thrones is one of the best dramas on television today, being filmed worldwide in exotic locales, with increased ratings each year in the United States and abroad. Yet, one has to express fascination at the series’ regular barbaric atrocities and complete lawlessness, with self-proclaimed kings or their servants selfishly, arbitrarily, and summarily executing and maiming people. While you can praise its acting, writing, catchy theme music, or the theatrical presentation, Game of Thrones on first glance does not appear to have much ‘Law’ going on. Then again, perhaps along with its well-written plotting and acting, based on the George R.R. Martin series of books, it’s a morbid fascination of what life was like in the Middle Ages that people find entertaining. Still, it is disquieting to think that in the absence of clear authority, be it royal or government, that lawlessness reigns supreme–but this is the law of the land of Game of Thrones, which unfortunately has a basis as being historically accurate. (It helps to remember that the series—ignoring the occasional bit of sorcery and dragons—is set long ago in the area of medieval England, sometime between about 1000 A.D. to the War of Roses in the 1400s.)

That got me thinking…was there any law at all during the Middle Ages, that helped prevent murder, torture, and maiming, when it came to mediating people’s disputes, before the time of the established Common Law and judges? Actually, there was a human invention, that is rarely acknowledged as existing today, because surprisingly it actually worked, by self-enforcing a mostly foolproof system, that kept people honest, and safeguarded against deceit and fraud in important financial or debt transactions, something that is argued daily in the Court system today (though usually without swordplay).

You may have never heard of a “tally stick” before, but for about 800 years, from 1000 A.D. even through the 1800s, the tally stick was commonly used as a main source of legal transactions involving financing or debt, particularly in Western Europe and England, but also as far away as China. So what is a “tally stick?” Well, picture a simple piece of wood, often hazelwood, being cut up into smaller pieces of irregular ‘sticks.’ When there was a buyer or seller having a financial transaction between themselves, (often with one or both parties to the transaction being illiterate, and having only rudimentary numbering skills), they would then put a number of ‘notches’ across the grain of the wooden stick, which would designate the amount of the debt owed, such as “7 pounds, 4 shillings” being marked by 7 notches in the middle and 4 notches to the right. After the notches were put on the wooden stick noting the debt owed, and usually with a minimal writing as to the parties and purpose, then the stick would be split lengthwise, with both sides getting half a piece. (Interestingly, the larger half, which would go to the ‘owner’ of the debt to be reclaimed later, was called a ‘stock’ which is the origin of our current use of that word, and why ‘stock certificates’ even today, are important to maintain.)

If there was to later be a dispute on the amount of debt owed, then the parties each had a unique and irregular piece of the original wooden tally stick, which when combined, would exactly match, confirming the amount of debt owed. Because it was virtually impossible to ‘remove’ a notch on the stick, the system prevented fraud, as it would be against a debtor’s interest to later choose to ‘add’ notches, so the amount of the originally agreed debt owed and due, could be simply ascertained later, and essentially, foolproof in its simplicity.

Of course, human progress, eventually made tally sticks obsolete, but it took over 800 years in England. Beginning in the 1700s with the ready use of paper, and increased literacy in general, people began to keep track of legal debts in different ways than just relying on tally sticks. (Though ironically the English Parliament had amassed enough tally sticks for ‘debt’ and accounting purposes, that in 1834 when the tally sticks were ordered destroyed after being discontinued from regular use due to greater availability of parchment and literacy in general, the resulting fire spread out of control, and burned down Westiminster palace.)   The late 1900s saw the further advent of photocopiers, making an exact copy of important debt/financial transactions signed by both parties, as easily confirmable as a tally stick, and much more convenient. What has changed in the past decade with the rapid expansion and immediate use worldwide of email, scanned pdf copies, and electronic signatures, is that now, arguably, it has become too easy, particularly by those with a predisposition, to create ‘fake’ impressions that are no longer necessarily the easily confirmable truth of what debts are due and owed, and for what purpose. The increasing use of ‘virtual’ money such as bitcoin, promises to muddle the water further, as to what debts are enforceable and the extent that bilateral deals between people, are considered currency. (As some tally sticks eventually were treated)   That’s perhaps one of the lessons to be learned from the recent robosigning scandals, and similar dishonest uses of false signatures and agreements.

In the world of Game of Thrones, set around 1200 A.D., tally sticks would be a convenient, and pleasantly realistic way to seal the deal between parties. I haven’t read the books yet, so this is just a hypothetical, but suppose an exiled Tyrion Lannister forges a temporary alliance with Daenerys Targaryen, helping finance her quest for the throne by providing ships to backup her grown dragons in attacking King’s Landing…they then have a tally stick to readily confirm the payment due. (That is unless magic were to enter the equation) But, on the whole, it’s good to know, that humanity, even a thousand years ago, could on some matters, settle important legal disputes without bloodshed. And that’s about the only ‘Law’ that existed at the time of Game of Thrones. (Still, I’m looking forward to this season.)

(A version of this article was previously printed in the Prince George’s County Bar Association Journal.   The author Michael Wein can be reached at weinlaw@hotmail.com.)