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b2mem2017-04-19 12:25 pm
dreamflower) wrote in b2mem2017-04-19 12:25 pm
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Concerning the Shire, Part Four: Law and The Legal System by Dreamflower
(Continuation of my "Concerning the Shire" series of backstory.)
B2MeM Prompt and Path: Purple path; Square 4, Wild Card--"Complete any prompt from the Orange path" (non-fiction). I chose Worldbuilding.
Format: Essay
Genre: Non-fiction
Rating: G
Warnings: n/a
Characters: Hobbits
Pairings: n/a
Creator’s Notes (optional): This essay is basically backstory I have constructed for my version of the Shire, concentrating on a few aspects of Shire society, and some explanation for how I came up with that backstory.
Nearly all quoted references in this section are either from the Prologue of LotR, or from The Letters of J.R.R. Tolkien Letter #214 or Letter #153. I hope to later footnote this more thoroughly.
Summary: Tolkien gives us a lot of information about the society of the Shire, but only some of the particulars. Coming up with details is up to the author of the fanfic; here are a few of mine.
Concerning the Shire, Part Four: Law and The Legal System
Laws
In the Prologue to LotR, we are told that the basis of all Shire law was the common law as laid down centuries before when there was still a King over the Northern Kingdom:
There remained, of course, the ancient tradition concerning the high king at Fornost, or Norbury as they called it, away north of the Shire. But there had been no king for nearly a thousand years, and even the ruins of Kings' Norbury were covered with grass. Yet the Hobbits still said of wild folk and wicked things (such as trolls) that they had not heard of the king. For they attributed to the king of old all their essential laws; and usually they kept the laws of free will, because they were The Rules (as they said), both ancient and just.
In other words most of the laws in the Shire were there from ancient tradition. Crime and criminals were extremely rare, and we are later told in "Scouring of the Shire" by Frodo that [insert murder quote], so violence was also very rare. In my Shire I allow for the occasional blows between tweens, and perhaps a rare dust-up between drunken hobbits, but even that sort of violence (fairly common among Men) was not a matter of course, and generally happened only between hobbits who had a shorter temper than was usual. A hobbit who persisted in violence after repeated warnings would be dealt with harshly; I will go into more detail about punishment later.
Trespass and theft were also considered crimes; if committed by an underage hobbit either the victim or the family would deal with the transgression. It's clear that some tween-aged scrumping was not only overlooked, but expected--but it also seems obvious that if it was serious in nature (taking not just a snack, but depredations on important cash crops or trespassing deeply into a farm, rather than snatching near the boundaries) the crimes were punished. We see this in the interactions of Frodo and Farmer Maggot in "A Shortcut to Mushrooms".
I would think that a great many crimes existed on the books that were never even contemplated in life, since the laws they were based on relied on the behaviors of Men and not of hobbits. Hobbits in general were law-abiding and once old enough to know The Rules, kept them.
Civil Law was another matter. We do know some things about this. For example, Bilbo's disappearance for a year was considered a presumed death, and a legal firm had begun to auction off the contents of Bag End when Bilbo showed up. We are also told that Otho Sackville-Baggins was all set to contest Bilbo's will when he left the second time.
Otho would have been Bilbo's heir, but for the adoption of Frodo. He read the will carefully and snorted. It was, unfortunately, very clear and correct (according to the legal customs of hobbits, which demand among other things seven signatures of witnesses in red ink).
It is not clear that the seven signatures in red ink are demanded of all legal contracts and documents, or only Bilbo's will. I have chosen to interpret it to mean all important contracts, such as wills, marriage contracts, adoptions and sales of real estate.
It is also not clear that the Sackville-Baggins had the right to Bag End at that point even if Bilbo had not returned; there was, according to Letter #214, no law codifying presumption of death until 1427.
The Baggins headship then, owing to the strange events, fell into doubt. Otho SackvilleBaggins was heir to this title – quite apart from questions of property that would have arisen if his cousin Bilbo had died intestate; but after the legal fiasco of 1342 (when Bilbo returned alive after being 'presumed dead') no one dared to presume his death again. Otho died in SR 1412, his son Lotho was murdered in SR 1419, and his wife Lobelia died in SR 1420. When Master Samwise reported the 'departure over Sea' of Bilbo (and Frodo) in SR 1421, it was still held impossible to presume death; and when Master Samwise became Mayor in SR 1427, a rule was made that: 'if any inhabitant of the Shire shall pass over Sea in the presence of a reliable witness, with the expressed intention not to return, or in circumstances plainly implying such an intention, he or she shall be deemed to have relinquished all titles rights or properties previously held or occupied, and the heir or heirs thereof shall forthwith enter into possession of these titles, rights, or properties, as is directed by established custom, or by the will and disposition of the departed, as the case may require.' Presumably the title of 'head' then passed to the descendants of Ponto Baggins – probably Ponto (II).
This seems contradictory, and a flaw in need of fixing, which I attempted to do in a couple of my stories. The loophole that I base my headcanon on is that at the time of Bilbo's return from his Adventure in SR 1342 is the fact that neither Otho nor Lobelia was of age at the time: Otho was born in SR 1310, and was only 32, while Lobelia was somewhat younger than he was. Therefore the notion of putting Bag End into the hands of the Sackville-Bagginses must have come from someone both old enough to use the law and with the presumed authority to do so. Since at that time there was no specific law governing presumption of death, I decided that the nearest blood relative could after enough time had passed to satisfy public opinion, petition to the lawyers of the supposed dead person to have such a declaration made. This would not have been Otho, but Bilbo's uncle, Lotho's father Longo Baggins--the hobbit who would assume Bilbo's position as Baggins Family Head if Bilbo had died. Clearly, since Otho and Lobelia were so young ( I presume newlyweds) it was to Longo's benefit to install them in Bag End.
We are told that wills and legal documents were valued highly in the Shire, and required a lot of legal language. While I have read many stories in which Frodo's custody after his orphaning was in disarray, I preferred to believe that Frodo's parents left a will. It's clear that Bagginses were generally well-off, even wealthy. And Primula was the
youngest sister of the Master of Buckland. I am certain that they made financial provision for their only son, as well as guardianship arrangements.
In my Shire, Drogo and Primula made Bilbo (Head of the Baggins Family) Frodo's primary guardian; Primula's cousin Saradoc was made the secondary guardian. However, since Frodo was only twelve at the time, Menegilda Brandybuck (wife of the Master, Rorimac) and Saradoc's wife Esmeralda (a Took by birth) persuaded Bilbo that Frodo was far too young to live with an adventurous old bachelor and that he needed a surrogate mother or two. Bilbo agreed, although with the caveat that he could and would take Frodo to live with him when he got older. From the age of fourteen on, however, Frodo spent several weeks each spring visiting Bilbo at Bag End and Bilbo often went to Buckland in the fall for their shared Birthday, and always spent the Yule holidays at Brandy Hall. The year Frodo was to turn 21, Bilbo finally put his foot down and brought Frodo permanently to Bag End.
Frodo's age was important. Naturally, Bilbo did not wish to wait until all of Frodo's formative years were past, but also it was necessary by law that he adopt Frodo before his majority, according to Letter #214:
It was agreed that the adoption of a member of a different family could not affect the headship, that being a matter of blood and kinship; but there was an opinion that adoption of a close relative of the same name* before he was of age entitled him to all privileges of a son. This opinion (held by Bilbo) was naturally contested by Otho.
Therefore, if he wished to prevent the Sackville-Bagginses from having any part in either Bag End or the Headship of the Bagginses, he had to adopt Frodo before he came of age at thirty-three.
My friend and co-writer for "Testaments of the Past" Gryffinjack, was in real life an attorney. In that story we produced a number of legal documents such as Drogo and Primula's will, their marriage document, Frodo's certificate of adoption, and so forth. Gryffinjack drew up documents to show the legal language and various signatures needed.
As Bilbo anticipated, Otho would have tried to contest the will if it had not been airtight; the adoption gave Bilbo a double protection, and Frodo's blood kinship helped cement the transaction.
Marriage Contracts
Marriage in the Shire was not a religious sacrament: In a footnote in his Letter #153, Tolkien says, "...this is a 'primitive age': and these folk may be said to view the Valar as children view their parents or immediate adult superiors, and though they know they are subjects of the King he does not live in their country nor have there any dwelling. I do not think Hobbits practised any form of worship or prayer (unless through exceptional contact with Elves).
In "my" Shire this follows through in daily life. There are ceremonies, but they are purely secular: babies have a "Naming Day"; funerals are memorials to the life of the deceased; weddings are centered around a Marriage Contract. All hobbit marriages have a contract, and the wedding ceremony is highlighted by the signing of the contract, by bride, groom, seven witnesses, and the officiator. The officiator is usually the Family Head, although it could also be the Thain, the Mayor, or the Deputy Mayor, or in Buckland and the Marish, the Master of Brandy Hall.
Contracts begin with the acknowledgement of the couple's love for one another, nearly always with an extended metaphor of one sort or another connoting "joining". It then extends into the families of the bride and groom, specifically acknowledging the bride as a new daughter in the groom's family and the groom as a new son of the bride's family. In most cases the property is acknowledged as being jointly held, and the couple's status as a new family is proclaimed. In the Great Families, there is some property exempted, such as dwellings, artifacts or funds that belong the family communally, and any titles or duties that are passed down through the family in a specific manner (such as the Thainship).
In deference to Tolkien's devout Catholicism, there is no divorce in "my" Shire; however, there can be a "disavowal" of a marriage by an injured party (a legal separation), or in extreme cases, a "dissolution" of the marriage, (which is like an annulment). The former was quite rare, and the latter was even more so. The dissolution can only be approved by the officiator of the wedding or by that officiator's direct successor. The disavowal, however, can be done by means of a letter from the injured party to the offender. There is no legal recourse for a no-fault separation, although of course an incompatible couple may decide to live apart, they are still considered married.
Crime and Punishment
As mentioned there was very little in the way of serious crime in the Shire. According to Frodo, there had never been a first degree murder, or any murder with intent: "No hobbit has ever killed another on purpose in the Shire, and it is not to begin now." he says in "The Scouring of the Shire".
This leaves some wiggle room, which I take advantage of in my stories, though in actual matter of fact, no such murders occur in any of my stories, it is mentioned that if a person causes a "wrongful death" due to reckless actions they would be culpable. And I have one character who contemplates murder and even comes close to attempting it, but does not follow through. And there are a couple of characters who do not actually kill another hobbit, but incite Big Folk to do so (Lotho Sackville-Baggins could have been held culpable for the deaths of hobbits in the "Scouring of the Shire" had he survived, and in my version, Ted Sandyman is held to be his accomplice.) We know hobbits have the concept of actual murder (probably because of the laws they inherited from the King, which were meant for Men) since we are privy to the gossip about Frodo's parents, in "A Long Expected Party", and in Letter #214, the speculation about the death of Lalia Clayhanger Took and the role of Pippin's elder sister Pearl. But all of this gossip does not ever seem to truly take the idea seriously. There was clearly no official notice taken, at any rate.
Most punishments were for transgressions within the family, and so punishment was meted out at the discretion of the Family Head, the worst being banishment from the family. But there were some things that were serious enough to call for the judgement of the Thain and his fellow worthies, the Master and the Mayor, and a few that might even call for a Convocation of Heads, as they would call for Banishment from the Shire completely.
Of course, "wrongful death" would head the list; thievery on a serious level (stealing objects of value for personal gain, as opposed to stealing for a joke or simple scrumping of gardens); violence that resulted in bodily harm, especially if it was persistant behavior--all of these things could result in Banishment from the Shire. If the judges were inclined to mercy, it might be for a set time, maybe three years or seven, or it could be permanent. In "my" Shire, four hobbits (OCs) were permanently banished after the War of the Ring for collaboration with Lotho.
Those who were permanently banished were given a tattoo on the back of their hand which spelled out their crime, for example "TRAITOR". It was tradition and not law, that any hobbit so marked was afterwards not spoken of or to, save by necessity, and was never referred to by name afterwards. The spouse of a married hobbit who was banished was allowed to choose whether to follow into exile. Usually if there were children involved the spouse would remain in the Shire for their sake. Banishment of a spouse was also grounds for dissolution, though that course might not be sought.
There was no form of institutional imprisonment. It is canon that there were no prisons in the Shire until the Occupation by Saruman's Men, at which time they converted some storage holes in Michel Delving into prisons for hobbits who resisted them. They were called the "Lockholes". This makes me believe that the very idea of prison as a punishment was anathema to hobbits. Any hobbits who offended might be temporarily confined in their own homes or perhaps in a Shirriff's office until the matter was settled.
After the ending of the Occupation and the establishment of the Northern Kingdom following the War of the Ring, however, there were some changes in Shire law, which will be covered in a future section.
B2MeM Prompt and Path: Purple path; Square 4, Wild Card--"Complete any prompt from the Orange path" (non-fiction). I chose Worldbuilding.
Format: Essay
Genre: Non-fiction
Rating: G
Warnings: n/a
Characters: Hobbits
Pairings: n/a
Creator’s Notes (optional): This essay is basically backstory I have constructed for my version of the Shire, concentrating on a few aspects of Shire society, and some explanation for how I came up with that backstory.
Nearly all quoted references in this section are either from the Prologue of LotR, or from The Letters of J.R.R. Tolkien Letter #214 or Letter #153. I hope to later footnote this more thoroughly.
Summary: Tolkien gives us a lot of information about the society of the Shire, but only some of the particulars. Coming up with details is up to the author of the fanfic; here are a few of mine.
Concerning the Shire, Part Four: Law and The Legal System
Laws
In the Prologue to LotR, we are told that the basis of all Shire law was the common law as laid down centuries before when there was still a King over the Northern Kingdom:
In other words most of the laws in the Shire were there from ancient tradition. Crime and criminals were extremely rare, and we are later told in "Scouring of the Shire" by Frodo that [insert murder quote], so violence was also very rare. In my Shire I allow for the occasional blows between tweens, and perhaps a rare dust-up between drunken hobbits, but even that sort of violence (fairly common among Men) was not a matter of course, and generally happened only between hobbits who had a shorter temper than was usual. A hobbit who persisted in violence after repeated warnings would be dealt with harshly; I will go into more detail about punishment later.
Trespass and theft were also considered crimes; if committed by an underage hobbit either the victim or the family would deal with the transgression. It's clear that some tween-aged scrumping was not only overlooked, but expected--but it also seems obvious that if it was serious in nature (taking not just a snack, but depredations on important cash crops or trespassing deeply into a farm, rather than snatching near the boundaries) the crimes were punished. We see this in the interactions of Frodo and Farmer Maggot in "A Shortcut to Mushrooms".
I would think that a great many crimes existed on the books that were never even contemplated in life, since the laws they were based on relied on the behaviors of Men and not of hobbits. Hobbits in general were law-abiding and once old enough to know The Rules, kept them.
Civil Law was another matter. We do know some things about this. For example, Bilbo's disappearance for a year was considered a presumed death, and a legal firm had begun to auction off the contents of Bag End when Bilbo showed up. We are also told that Otho Sackville-Baggins was all set to contest Bilbo's will when he left the second time.
It is not clear that the seven signatures in red ink are demanded of all legal contracts and documents, or only Bilbo's will. I have chosen to interpret it to mean all important contracts, such as wills, marriage contracts, adoptions and sales of real estate.
It is also not clear that the Sackville-Baggins had the right to Bag End at that point even if Bilbo had not returned; there was, according to Letter #214, no law codifying presumption of death until 1427.
This seems contradictory, and a flaw in need of fixing, which I attempted to do in a couple of my stories. The loophole that I base my headcanon on is that at the time of Bilbo's return from his Adventure in SR 1342 is the fact that neither Otho nor Lobelia was of age at the time: Otho was born in SR 1310, and was only 32, while Lobelia was somewhat younger than he was. Therefore the notion of putting Bag End into the hands of the Sackville-Bagginses must have come from someone both old enough to use the law and with the presumed authority to do so. Since at that time there was no specific law governing presumption of death, I decided that the nearest blood relative could after enough time had passed to satisfy public opinion, petition to the lawyers of the supposed dead person to have such a declaration made. This would not have been Otho, but Bilbo's uncle, Lotho's father Longo Baggins--the hobbit who would assume Bilbo's position as Baggins Family Head if Bilbo had died. Clearly, since Otho and Lobelia were so young ( I presume newlyweds) it was to Longo's benefit to install them in Bag End.
We are told that wills and legal documents were valued highly in the Shire, and required a lot of legal language. While I have read many stories in which Frodo's custody after his orphaning was in disarray, I preferred to believe that Frodo's parents left a will. It's clear that Bagginses were generally well-off, even wealthy. And Primula was the
youngest sister of the Master of Buckland. I am certain that they made financial provision for their only son, as well as guardianship arrangements.
In my Shire, Drogo and Primula made Bilbo (Head of the Baggins Family) Frodo's primary guardian; Primula's cousin Saradoc was made the secondary guardian. However, since Frodo was only twelve at the time, Menegilda Brandybuck (wife of the Master, Rorimac) and Saradoc's wife Esmeralda (a Took by birth) persuaded Bilbo that Frodo was far too young to live with an adventurous old bachelor and that he needed a surrogate mother or two. Bilbo agreed, although with the caveat that he could and would take Frodo to live with him when he got older. From the age of fourteen on, however, Frodo spent several weeks each spring visiting Bilbo at Bag End and Bilbo often went to Buckland in the fall for their shared Birthday, and always spent the Yule holidays at Brandy Hall. The year Frodo was to turn 21, Bilbo finally put his foot down and brought Frodo permanently to Bag End.
Frodo's age was important. Naturally, Bilbo did not wish to wait until all of Frodo's formative years were past, but also it was necessary by law that he adopt Frodo before his majority, according to Letter #214:
Therefore, if he wished to prevent the Sackville-Bagginses from having any part in either Bag End or the Headship of the Bagginses, he had to adopt Frodo before he came of age at thirty-three.
My friend and co-writer for "Testaments of the Past" Gryffinjack, was in real life an attorney. In that story we produced a number of legal documents such as Drogo and Primula's will, their marriage document, Frodo's certificate of adoption, and so forth. Gryffinjack drew up documents to show the legal language and various signatures needed.
As Bilbo anticipated, Otho would have tried to contest the will if it had not been airtight; the adoption gave Bilbo a double protection, and Frodo's blood kinship helped cement the transaction.
Marriage Contracts
Marriage in the Shire was not a religious sacrament: In a footnote in his Letter #153, Tolkien says, "...this is a 'primitive age': and these folk may be said to view the Valar as children view their parents or immediate adult superiors, and though they know they are subjects of the King he does not live in their country nor have there any dwelling. I do not think Hobbits practised any form of worship or prayer (unless through exceptional contact with Elves).
In "my" Shire this follows through in daily life. There are ceremonies, but they are purely secular: babies have a "Naming Day"; funerals are memorials to the life of the deceased; weddings are centered around a Marriage Contract. All hobbit marriages have a contract, and the wedding ceremony is highlighted by the signing of the contract, by bride, groom, seven witnesses, and the officiator. The officiator is usually the Family Head, although it could also be the Thain, the Mayor, or the Deputy Mayor, or in Buckland and the Marish, the Master of Brandy Hall.
Contracts begin with the acknowledgement of the couple's love for one another, nearly always with an extended metaphor of one sort or another connoting "joining". It then extends into the families of the bride and groom, specifically acknowledging the bride as a new daughter in the groom's family and the groom as a new son of the bride's family. In most cases the property is acknowledged as being jointly held, and the couple's status as a new family is proclaimed. In the Great Families, there is some property exempted, such as dwellings, artifacts or funds that belong the family communally, and any titles or duties that are passed down through the family in a specific manner (such as the Thainship).
In deference to Tolkien's devout Catholicism, there is no divorce in "my" Shire; however, there can be a "disavowal" of a marriage by an injured party (a legal separation), or in extreme cases, a "dissolution" of the marriage, (which is like an annulment). The former was quite rare, and the latter was even more so. The dissolution can only be approved by the officiator of the wedding or by that officiator's direct successor. The disavowal, however, can be done by means of a letter from the injured party to the offender. There is no legal recourse for a no-fault separation, although of course an incompatible couple may decide to live apart, they are still considered married.
Crime and Punishment
As mentioned there was very little in the way of serious crime in the Shire. According to Frodo, there had never been a first degree murder, or any murder with intent: "No hobbit has ever killed another on purpose in the Shire, and it is not to begin now." he says in "The Scouring of the Shire".
This leaves some wiggle room, which I take advantage of in my stories, though in actual matter of fact, no such murders occur in any of my stories, it is mentioned that if a person causes a "wrongful death" due to reckless actions they would be culpable. And I have one character who contemplates murder and even comes close to attempting it, but does not follow through. And there are a couple of characters who do not actually kill another hobbit, but incite Big Folk to do so (Lotho Sackville-Baggins could have been held culpable for the deaths of hobbits in the "Scouring of the Shire" had he survived, and in my version, Ted Sandyman is held to be his accomplice.) We know hobbits have the concept of actual murder (probably because of the laws they inherited from the King, which were meant for Men) since we are privy to the gossip about Frodo's parents, in "A Long Expected Party", and in Letter #214, the speculation about the death of Lalia Clayhanger Took and the role of Pippin's elder sister Pearl. But all of this gossip does not ever seem to truly take the idea seriously. There was clearly no official notice taken, at any rate.
Most punishments were for transgressions within the family, and so punishment was meted out at the discretion of the Family Head, the worst being banishment from the family. But there were some things that were serious enough to call for the judgement of the Thain and his fellow worthies, the Master and the Mayor, and a few that might even call for a Convocation of Heads, as they would call for Banishment from the Shire completely.
Of course, "wrongful death" would head the list; thievery on a serious level (stealing objects of value for personal gain, as opposed to stealing for a joke or simple scrumping of gardens); violence that resulted in bodily harm, especially if it was persistant behavior--all of these things could result in Banishment from the Shire. If the judges were inclined to mercy, it might be for a set time, maybe three years or seven, or it could be permanent. In "my" Shire, four hobbits (OCs) were permanently banished after the War of the Ring for collaboration with Lotho.
Those who were permanently banished were given a tattoo on the back of their hand which spelled out their crime, for example "TRAITOR". It was tradition and not law, that any hobbit so marked was afterwards not spoken of or to, save by necessity, and was never referred to by name afterwards. The spouse of a married hobbit who was banished was allowed to choose whether to follow into exile. Usually if there were children involved the spouse would remain in the Shire for their sake. Banishment of a spouse was also grounds for dissolution, though that course might not be sought.
There was no form of institutional imprisonment. It is canon that there were no prisons in the Shire until the Occupation by Saruman's Men, at which time they converted some storage holes in Michel Delving into prisons for hobbits who resisted them. They were called the "Lockholes". This makes me believe that the very idea of prison as a punishment was anathema to hobbits. Any hobbits who offended might be temporarily confined in their own homes or perhaps in a Shirriff's office until the matter was settled.
After the ending of the Occupation and the establishment of the Northern Kingdom following the War of the Ring, however, there were some changes in Shire law, which will be covered in a future section.
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(Just as a minor thing, the entry should only be tagged for the orange path and not the purple path -- each entry is tagged for the path that the prompt comes from, whether or not it's the path the participant is currently following.)
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It's interesting to consider how the gossip about Frodo's parents fits together with Frodo's statement about hobbits not killing each other.
Maybe you're right and they just weren't taking their speculation seriously.
The other possibility, I suppose, would be in such a family-centered society that, wherever possible, the family dealt with things among themselves even in cases such as (possibly) Lalia's and officials turned a blind eye and allowed them to sweep it under carpet.