Tuesday, November 1, 2011

And now one of my better efforts

(A picture of Abelard's brother Preacher, Dominic, at left)

To make up for the last lugubrious posting, I decided to post some of my better writing.

Some time in 2002, then-Majesties of An Tir, Nicholaus and Alyssia, for reasons known only to God decided that they would expand the sumptuary laws of An Tir to include some that they were familiar with. (That is to say, they'd moved in from another kingdom and thought we needed a dose of the other kingdom's laws.)

I was, as they say, nonplussed.

However, there is a side of me that comes out every once in awhile, who will pick apart something like that, and strip the flesh of a matter until the bare bones are exposed. His name is Abelard the Lesser.

Father Abelard sat down, and with the aid of a number of texts, including Gratian's Decretum, examined the issue carefully. This document is the result.


Unto Their Most Royal Majesties of An Tir; Nicholaus, our Undoubted King, and His Most Gracious and Renowned Queen, Alyssia:

Come now these Greetings from the humble Abelard, known as the Lesser, Clerk and Lawyer in the Order of Preachers (Dominican). God grant His Grace to Your Thrones, and long may Your names be heard in the Halls Of Valor and Good Remembrance. Greetings also, in Courtesy, to Their Royal Highnesses, Davin and Groa, that they may also see and ponder the words I offer to Their Majesties. And to Yourselves I offer: Peace, Wisdom, and Humility be granted to you, in remembrance that to wear the Crown is to be the servant of all the Kingdom, and indeed the most humble of all portions.

And now, to the business of this letter.

I have read the proposed changes to the Sumptuary customs and have spent much time pondering these matters, weighing them carefully, and reading books and treatises such as that have bearing on the matter. First, I must apprise you that though I have nearly 14 years experience in the Society, I have modern education and credentials in medieval history and law customs. I can best give information and advice from my studies. I do hope that they count for something in a historical recreation group such as the Society. Also, I am neither on the 'Steps' nor the 'Cathedral'. Friends will on occasion tell me bits of things, but I have no direct knowledge of the conversations therein, nor of what other members of the populace have to say on the matter.

There is, it would appear to me, to be two issues presented by the proposed changes, these issues being: Custom, and Purpose. I will attempt to address these in turn, for while they can be related and at times entangled, they are- at least in the light of medieval law- separate issues.

As to Custom-

The issue of Custom is to my mind raised by the wording of the proposed 'Sumptuary Customs', in the Introduction thereof, a portion:
"These Customs are a compilation of the traditional sumptuary customs, practices, and restrictions of the Kingdom of An Tir. They are presented here in writing, to preserve the traditions of Our realm, and to serve as a source of information for the people of An Tir."

Having read through the rest of the document, particularly noting the newer additions, I must argue that these are neither Customs, nor An Tirian.

Allow me to explain: Custom, in general, means a long-standing, habitual practice. In particular, it has a very specific meaning in Common Law, and when discussing sumptuary matters, the more specific meaning cannot be ignored. The Common Law consists of two parts- the Lex Scripta, or written law, which is created as statute by rulers, and Leges non Scriptae- Customary Law.

Leges non Scriptae are authoritative and original institutions that are not created by a ruling body setting them to writing, but are grown into use and thereby acquire the force of law. Within these Leges non Scriptae are laws made by Custom and Usages.

Custom as Law is subject to certain qualifications. It is not simply unwritten custom, or an oral tradition. Custom is a long-standing usage that has the force of ordinance (Lex Scripta) where none exists. What constitutes long-standing varies by place and situation. For an act, three repetitions may suffice. In other circumstances, it must be a Custom that goes beyond the remembrances of man- i.e. you might remember your grandfather speaking of observing the custom. In some places there are specific times "Before the reign of the Normans" "Before the ascension of King Richard (I)", etc. I have understood for some time that a 'generation' in the Society is about five years- in which case establishment of true Custom can happen in as little as five to ten years.

As well as length, there must be continuity. For a new custom to abrogate (invalidate) the current one, it must be practiced for at least ten years, without break. And the word 'practiced' brings up the next test:

Intention. For a practice to be a Custom, and have the force of Law as Leges non Scriptae, it must be intended to become a Custom. One does not suddenly wake up one day and find that something they did without thought is now a law. As an example, the modern practice of common law marriage- one of the proofs, should it ever go to court for some reason, is Did the Couple Intend to be Married? Were they living together with the intent of it becoming legal vis-a-vis the Common Law? (In fact this holds true in period Marriage Law as well.)

And lastly, Custom that affects all must be approved by the majority. This is not to say that there is something of democratic process, but that the people have to want to practice the thing, with intention and continuity, for it to become Custom. So it is implicit then that they consent.
If a Custom is written down such as to enlighten newcomers, etc., it must be understood that the strength of the Law is not in the writing- the obliging force and power stems directly from the long custom and use.

Now: the Sumptuary standards under discussion. Are they Custom? I believe not. As to length and continuity of practice, they do not reflect the general current practice. And the additions of course cannot be called Custom, as they are new and externally applied. And lack of current practice would either indicate that they have not been accepted, or that they have been abrogated through lack of observance. As to intention? I do not believe there has been a general intention to establish custom. And there are reasons for this which I will go into later. And the same with general acceptance. And if they are not Custom, they are not likely An Tirian.

And so to Purpose.

The basics of medieval Civil Law (that is Lex Scripta) are generally built upon Roman Civil Law. When there is no ordinance regarding something, the matter falls back up the Customs, or Leges non Scriptae. Having established that the proposed Sumptuary standards are not Custom, they must therefor be ordinance, or Civil Law. According to Isidore's Etymologies, as further recorded in Dicta Gratiani, the creation and nature of Ordinance should be as follows: proper, just, possible, in accordance with nature, in accord with the Custom of the country, suitable to the place and time, necessary, useful, clear so as to not contain hidden deception, and not accommodated to some private individuals, but composed for the common utility of the citizens. Ordinances are instituted when they are promulgated, but they are only confirmed when they have been approved by the usage of those who observe them. Ordinances are abrogated- that is, cancelled and rendered void- by consistent and persistent usages contrary to the ordinance. In light of the requirements of Ordinance and the circumstances of acceptance or abrogation, I must concluded that the proposed Sumptuary standards will not pass these tests and are likely to be abrogated.

Referring back to the Introduction of the aforementioned 'Sumptuary Customs', we find this statement:

"This information is designed to assist the populace in the preparation and use of personal regalia items. These guidelines are intended to further enhance the dignity, estate, and appearance of the people of An Tir, and should be consulted when preparing new items of regalia."

There are records of sumptuary standards in many places and times in SCA period, and they have one overriding thing in common: They are meant to discourage sartorial display, and to further broaden the visual gaps between the social classes. Sumptuary laws by their nature are restrictive, and do not encourage the populace towards the use of regalia, but instead away from it.

To explain a bit- sumptuary laws came about (and persisted) for several purposes. First, they were designed to create a visual distinction between the social orders. Heraldry in its early forms was a part of this, and in part because of that, the various Colleges of Heralds have had the responsibility for creating and maintaining the rules and standards of regalia.

Besides a visual distinction, there is an economic one. Most of the sumptuary standards that we can point to come from the time period after the Black Plague, at a time when the social orders are severely disrupted simply because of the vast numbers of dead. The economy was volatile, there was something of social 'upward mobility' happening, and merchants and townsmen were suddenly behaving and dressing like their betters. A number of laws were passed to try to control this, such as the Ordinance and Statutes of Laborers, in 1349 and 1351 in England. Both were intended to keep the lower orders where they belonged, and to restrict their ability to demand higher wages or to move about seeking a better situation. After this was a Sumptuary Statute Of Edward III, in 1363. It was a direct descendant of the statutory provisions that spawned the earlier labor statutes. The idea of this statute was not only to keep people from looking like their betters, but to keep them from spending too much money doing so- which was diverting money from more productive investments that might help the kingdom get back on its feet, and funneling it into clothing and fripperies, and not inconsequentially, into the weavers and merchants not of England, but of Lille, Bruges, Arras, Venice, etc. There was also more than a little of a sense that the People would spend far too much on frivolous things if they weren't prevented from doing so, and must be prevented by their betters.

Many of the more complicated sumptuary laws (such as those in Renaissance Italy) are distinctly economic- only someone with such-and-such an income may wear this kind of fabric from Lucca, or the number of pearls on an woman's gown may not exceed X unless her husband holds a certain position in the town. One could know one's economic (and by extension, social) class simply by 'reading' their dress. This went of course all the way down into the underclass, where prostitutes were required to wear striped hoods or bells on their tippets- and if they attempted to dress like a higher, more respectable woman (this seems to have involved wearing the veils of a proper married woman), the offender was beaten severely in the public square.

There is a sideline of sumptuary standards that may actually have more to do with the Society than rules about a prostitute's red shoes or pearls of a Roman matron's headdress; and that would be rules for regalia. The regalia guidelines are not meant for daily wear, or festival, or even attendance on a king on a hunt. Regalia are emblems- outward tokens of merit and achievement. They appear to be specifically designed to control what is worn in Royal Court occasions- Coronations, royal weddings, royal baptisms, elevations, the opening of Parliament- not necessarily where one wears the highest fashion, but where the rigid, codified formal attire is worn. (Even today, when you see the robes and chaplet worn as they were 300 years ago- no longer fashion, but now costume.) In this context- and only there- the rules are very specific and detailed.

So, this is known: sumptuary rules prevent people from dressing as their betters, thus reinforcing the social order, and redirecting the economy to more useful things, and it serves a visual cue for specific roles at court.

Now perhaps to look back at An Tir.

Do we actually have a problem with people dressing as their betters? I have not seen behavior that appears that way. And because of the balance of Society awards and individual personae, it would be very difficult to ascertain if there genuinely was a problem. Are people outspending themselves and ruining the kingdom's economy? I dare say that is between their checkbooks and themselves. Indeed, there are a number of clothing and fabric merchants in An Tir who would be glad of the business. So if is not social or economic, the crux must be ceremonial. And there we find it our matter.

The proposed sumptuary standards are not necessarily about sumptuary matters, but are specifically about regalia. And we must examine it with these questions in mind: Is there a problem which must be addressed by this document? Are these matters important? How will they change the visual and social aspect of An Tir? Are these rules An Tirian, and if not, what do they accomplish? To whit: do they follow the precepts of Ordinance?

The section addressing crowns, coronets, and circlets, is standard, with only minor modifications.

The section regarding chains also appears to be standard and unchanged.

The section on Collars of Estate is new, so we ask- is there a problem with these collars that must be addressed? .Having only seen a couple of them, I was not aware that they were an issue. They would be appropriate only with a fairly narrow band of personae. Is it truly important to create guidelines? Does anyone really need a rule? Does making a rule encourage people to make a Collar, and how does it do so? If they want one, why haven't they made one already? And not having seen anything like this in An Tir, where does it come from and how does it benefit us?

The section on chaplets has similar concerns, even more so. Chaplets of fur (of any sort) are specifically ceremonial regalia. You don't wear them to dinner at your Auntie's. They are worn in court, when receiving foreign dignitaries, etc. If anyone in An Tir had them, they would wear them twice a year- at both coronations. There really is not another appropriate time and place. However, that is a very big if. Does anyone in An Tir have a chaplet of fur, much less ermine? I have never seen one. And the only ermine I've ever seen was on Mistress Tessella's tippets. This bit of regalia would be very self-limiting due to expense. And it is not appropriate to wear one if the king is not doing so. Also, like the collars, it is appropriate for a very narrow time and place. The chaplets do eventually freeze and become a 'costume' regalia, but they were worn by the actual court during a very short period of time. This happened also to a particular sort of sideless surcoat, which turns up on portraits of queens long after they were fashionable. Shall we add them to the list of things to regulate?

The chaplets are also not native to An Tir- the notion has been imported from somewhere else. Since it is not in use, and not likely to be in common use (I know it is in the sumptuary laws in other kingdoms, but I asked around- it is not in use there) so why create a rule regarding something that is not used? How will we be benefitted by doing so?

As to spurs, I seem to remember that at one point the specific rule had been that knights may have spurs with rowels, leaving pick spurs to the populace. I being a man of the church, have no particular opinion.

About belts. Here is one item of regalia that has a special problem. It is also a necessary item of clothing. Belts of white have been reserved since time immemorial (and yes, white belts for knights are period- as per careful study, I have concluded that not all knights wore white belts, but if you find a period picture of a man wearing a white belt, chances a very good that he's a knight!). Red belts have, by Custom (and I do mean Custom in the legal sense) been set apart for squires. But the green and yellow belts have been only intermittently used in other kingdoms, and while they have been introduced here, they have not really been accepted in general use. My guesses at why are these- knights and squires both wear belts as part of their ensemble anyway. Laurels and Pelicans may or may not wear belts, and are more likely to have very elaborate clothes that require special waist-wear. An apprentice or protege may not wear a plain leather belt for similar reasons. Many Laurels and Pelicans have their own favors or livery to make note of their students with. Is it truly necessary to mark people with belts in this manner? What does it accomplish? It is my firm belief that if this was meant to be, it will grow into Custom. If not, it will not. In the meantime, do we wish to restrict the clothing options of those of the populace who are not of the Chivalry or in a specific relationship with a peer?

Now back to Purpose.

I have been given to understand that it was Your Majesties' intent to encourage sartorial display, to encourage creation and regular use of regalia, to enhance our experience in the Current Middle Ages through pomp and panoply. I understand and applaud that intent, if that was indeed your meaning. But I cannot believe that the way to best encourage something is to regulate it. I believe that the best way to encourage something is to do it- and do it well. Put your household in livery, have banners and gonfalons made. Think about how to encourage the populace to research the regalia that would be appropriate for their persona, perhaps by the creation of an award, not specifically for persona, but for display of such. I, for instance, may not wear regalia- it would be most inappropriate for a Dominican canon. But I know a woman who has taken her award medallions and mounted them on a fine baldric with gauds and bells, as is appropriate to her early 15th c persona.

It is of course entirely Your Majesties' prerogative to consider my words or to disregard them. But I must add this: As they stand now, the 'Sumptuary Customs of An Tir', being neither Custom nor An Tirian, and specifically noted as not statutory, are quite likely to be received with a most time-honored Custom of An Tir- that is, being ignored. And I do not think that would be any benefit either to Your Majesties, or to An Tir.

Written on this the feast day of St John the Evangelist with the assistance of my scribe, Arundel, but signed by mine own hand,
In all Honesty and Reverence, I remain,

Father Abelard the Lesser, Order of Preachers (Dominican)

They decided not to implement the laws after all. I'm sure this is just a coincidence.