Welsh law

2008/9 Schools Wikipedia Selection. Related subjects: British History

Welsh law, the law of Wales, was traditionally first codified by Hywel Dda ("Hywel the Good") during the period between 942 and 950 when he was king of most of Wales. In Welsh it is usually called Cyfraith Hywel, the Law of Hywel. The tradition states that Hywel's men adapted existing laws and some elements are probably of much greater antiquity, with points of similarity to the Brehon Laws of Ireland. The earliest manuscripts which have been preserved date from the early or mid 13th century. The law was continually revised and updated, sometimes by rulers but usually by jurists, so that the provisions of the law in a mid thirteenth century manuscript should not be considered as evidence of what the law was in the mid 10th century.

Overview

The laws include "The laws of the court", the laws laying down the obligations and entitlements of the king and the officers of his court and "The laws of the country" dealing with every other topic. In some versions of the laws some of the material in the laws of the country are split off into "The justices' test book" dealing with homicide, theft and the values of wild and tame animals and other items. Within each of these sections there are tracts of varying length dealing with different subjects, for example the law of women and the law of contracts. Civil law differed from most other codes of law in the rule that on a landowner's death his land was to be shared equally between his sons, legitimate and illegitimate. This caused conflict with the church, for under Canon law illegitimate children could not inherit.

Once a case came to court, the method used to come to a decision was usually by compurgation. Under this system the person accused or the parties to a dispute would give their version under oath, following which they had to find a number of others who would take an oath that the principal's oath could be trusted. The number of compurgators required depended on the nature of the case. The judge or judges would then come to a decision. Capital punishment was only prescribed for a small number of crimes. Homicide was usually dealt with by the payment of compensation to the victim's family, while theft could be punished by death only if it was theft by stealth and the thief was caught with the goods in hand; the value of the goods stolen also had to exceed four pence. Most other offences were punished by a fine.

Welsh law was in force in Wales until the death of Llywelyn the Last in 1282 and the Statute of Rhuddlan in 1284 which replaced Welsh criminal law with English law. Welsh law continued to be used for civil cases until the annexation of Wales to England in the 16th century.

Origins

Most of the surviving manuscripts of Welsh law start with a preamble explaining how the laws were codified by Hywel. The introduction to the Book of Blegywryd is a typical example:

Hywel the Good, son of Cadell, by the grace of God, king of all Wales ... summoned to him from every commote of his kingdom six men who were practised in authority and jurisprudence ... to the place called the White House on the Taf in Dyfed. ... And at the end of Lent the king selected from that assembly the twelve most skilled laymen of his men and the one most skilled scholar who was called Master Blegywryd, to form and interpret for him and for his kingdom , laws and usages ... .

The description of Hywel as "king of all Wales" suggests a date between 942 and Hywel's death in 950 for this council. However the Welsh laws have many points of similarity to the Brehon Laws in Ireland and some parts probably date from long before Hywel's time. What was produced by Hywel's council was not a set of entirely new laws, rather as described in the preamble to the Book of Iorwerth:

And by the common counsel and agreement of the wise men who came there they examined the old laws, and some of them they allowed to continue, others they amended, others they wholly deleted, and others they laid down anew.

The "White House on the Taf" is Whitland ( Welsh: Hen Dŷ Gwyn ar Daf). Other kings are said to have introduced later modifications to the laws, for example Bleddyn ap Cynfyn, king of Gwynedd and Powys in the mid 11th century.

Historians are divided as to whether the story of the council at Whitland can be regarded as having a basis in fact, since there is no contemporary record in the annals of such a council. K.L. Maund suggests that:

it is not impossible that the association of Hywel with the law reflects more on twelfth- and thirteenth century south Welsh attempts to re-establish the importance and influence of their line in an age dominated by the princes of Gwynedd.

On the other hand, it should be noted that the Iorwerth versions, produced in Gwynedd, have exactly the same attribution of the law to Hywel and the council at Whitland as do the southern versions.

Manuscripts

There are no existing manuscripts of law texts dating back to the time of Hywel and Welsh law was continually being revised and updated. There has been some debate among scholars as to whether the laws were originally written in Welsh or Latin. The Surexit memorandum in the Lichfield Gospels is a record of the outcome of legal proceedings dating from the 9th century and written in Welsh, and though it is not a law manual it does indicate the use of Welsh legal terms at that time. The earliest manuscripts known are Peniarth 28, written in Latin but now generally thought to be a translation of a Welsh original, and Peniarth 29, known as the "Black Book of Chirk", written in Welsh. These are thought to date from the early or mid 13th century. There are a large number of law manuscripts, written mainly in Welsh but some in Latin, written between this period and the 16th century. Apart from the full compilations there are shorter versions thought to have been working copies used by judges. However they are all usually considered to fall into three Redactions, known as the Cyfnerth Redaction, the Blegywryd Redaction and the Iorwerth Redaction. The Cyfnerth Redaction, thought to be linked to the area between the River Wye and the River Severn, possibly Maeliennydd, includes some of the least developed law. It is thought to have been compiled in the late 12th century when this area came under the rule of Rhys ap Gruffydd (The Lord Rhys) of Deheubarth. The Blegywryd Redaction is associated with Deheubarth and shows signs of the influence of the church. The Iorwerth Redaction is thought to represent the law as modified in Gwynedd during the reign of Llywelyn the Great in the first part of the 13th century by the jurist Iorwerth ap Madog. This is considered to be the most developed version of the law, though it does contain some archaic passages. The version in Llyfr Colan is thought to be a revision of Iorwerth, though also from the 13th century, and there is also the Llyfr y Damweiniau (possibly best translated as "The book of happenings"), a collection of case-law linked to Colan. No manuscript has survived from Powys, though the Iorwerth Redaction does indicate where usage in Powys differs from usage in Gwynedd.

The laws of the court

The first part of the laws deal with the rights and duties of the king and the officers of the king's court. The order of precedence is set down, first the king, then the queen and then the edling, the designated heir of the king. Then come the officers of the court. The Iorwerth Redaction identifies twenty-four, of whom sixteen are the king's officers and eight the queen's officers. First in rank was the captain of the household troops, then the priest of the household, then the steward followed by the chief falconer, the court justice, the chief groom and the chamberlain. A list of additional officers follows, including such officers as the groom of the rein, the porter, the bakeress and the laundress. Each officer's entitlements and obligations are listed.

It introduces a number of legal terms. Sarhad could mean an insult or injury or the payment that was due to a person in the event of an insult or injury, and this varied according to the status of the person concerned, for example the queen or the edling's sarhad was one third that of the king. Galanas was a form of weregild and represented the value of a person's life in the event of a homicide and was set at three times the sarhad, though the sarhad was also payable by the killer. Dirwy was a fine payable for crimes and camlwrw a smaller fine for less serious offences, while ebediw was a death duty payable to the deceased's lord.

The origins of the various redactions are reflected in the relative position of the rulers of the Welsh kingdoms. The Iorwerth Redaction manuscripts proclaim the superiority of the king of Aberffraw, chief seat of the kingdom of Gwynedd, over the others, while the manuscripts from Deheubarth claim at least equality for the king of Dinefwr, chief seat of the southern kingdom.

While Welsh law lays more emphasis on the powers of the king than the Brehon Law of Ireland, this is still restricted compared to many other codes. As Moore comments:

Welsh law fell into the juristic category of Volksrecht ("people's law"), which did not lay great stress on royal power, as opposed to the Kaisersrecht or Königsrecht ("king's law") of both England and Scotland, where it was emphasised that both civil and common law were imposed by the state.

The laws of the country

The laws indicate that Welsh society was divided into three classes, the king, the breyr or bonheddig, who were the free landowners, and the taeog or villein. A fourth class was the alltud, a person from outside Wales who had settled there. Most of the payments due by law varied with the social status of the person concerned.

The laws of women

The second part of the laws begins with "the laws of women", for example the rules governing marriage and the division of property if a married couple should separate. The position of women under Welsh law differed significantly to that of their Norman-English contemporaries. A marriage could be established in two basic ways. The normal way was that the woman would be given to a man by her kindred; the abnormal way was that the woman could elope with a man without the consent of her kindred. In this case her kindred could compel her to return if she was still a virgin, but if she was not she could not be compelled to return. If the relationship lasted for seven years she had the same entitlements as if she had been given by her kin.

A number of payments are connected with marriage. Amobr was a fee payable to the woman's lord on the loss of her virginity, whether on marriage or otherwise. Cowyll was a payment due to the woman from her husband on the morning after the marriage, marking her transition from virgin to married woman. Agweddi was the amount of the common pool of property owned by the couple which was due to the woman if the couple separated before the end of seven years. The total of the agweddi depended on the woman's status by birth, regardless of the actual size of the common pool of property. If the marriage broke up after the end of seven years, the woman was entitled to half the common pool.

If a woman found her husband with another woman, she was entitled to a payment of six score pence the first time and a pound the second time; on the third occasion she was entitled to divorce him. If the husband had a concubine, the wife was allowed to strike her without having to pay any compensation, even if it resulted in the concubine's death. A woman could only be beaten by her husband for three things: for giving away something which she was not entitled to give away, for being found with another man or for wishing a blemish on her husband's beard. If he beat her for any other cause, she was entitled to the payment of sarhad. If the husband found her with another man and beat her, he was not entitled to any further compensation. According to the law, women were not allowed to inherit land. However there were exceptions, even at an early date. A poem dated to the first half of the 11th century is an elegy for Aeddon, a landowner on Anglesey. The poet says that after his death his estate was inherited by four women who had originally been brought to Aeddon's court as captives after a raid and had found favour with him. The rule for the division of moveable property when one of a married couple died was the same for both sexes. The property was divided into two equal halves, with the surviving partner keeping one half and the dying partner being free to give bequests from the other half.

The Nine-tongued ones

This section is a list of nine persons whose evidence on oath is to believed, without the need for compurgators. They include a justice testifying as to what his judgment was in a case, a surety as to what the debt was for which he gave suretyship and a maiden as to her virginity.

Surety and contracts

The section on surety lays down the rules if a person acts as mach or surety, for example for a debt, and gives the provisions for various cases, such as where the debtor refuses to pay or denies the debt and where the surety denies the suretyship or contests the sum involved. Rules are also given for the giving and forfeiting of gages. Another aspect is amod or contract, usually made by the two parties calling amodwyr who are witnesses to prove the terms agreed by the parties. It is laid down that

An amod breaks a rule of law. Though an amod be made contrary to law, it is necessary to keep it.

In what is thought to be an archaic survival in some versions of Iorwerth it is stated that women are not entitled to act as sureties or to give sureties. Later versions of this rule in Iorwerth state that women were entitled to give sureties, and could therefore enter into contracts, though they were still not allowed to act as sureties. In Colan, Cyfnerth and some of the Latin texts women could give sureties and could under certain circumstances act as sureties. This appears to indicate a gradual improvement in the legal position of women in this respect.

Land law

This is followed by land law, setting out the procedure in the event of rival claims for ownership of a piece of land. The court was held on the land itself, with both claimants bringing forward witnesses to support their claims. In the Iorwerth Redaction, it is stated that the claimants are entitled to the assistance of a cyngaws and a canllaw, both types of advocate though the difference between them is not explained in the texts. If both claims were adjudged equal in merit, the law allowed for the land to be shared equally between the two claimants.

On the death of a landowner the principle is that the land should be shared equally between his sons, a system similar to the gavelkind found in Kent and other parts of England. The youngest son was to divide the land and the other brothers to choose their portions in turn. Illegitimate sons were entitled to an equal share with the legitimate sons, provided they had been acknowledged by the father. This was the provision which differed most from Canon law; as the Iorwerth text puts it:

The law of the church says that no-one is entitled to patrimony save the father's eldest son by his wedded wife. The law of Hywel adjudges it to the youngest son as to the eldest, and judges that the father's sin and his illegality should not be set against the son for his patrimony.

Dadannudd is also described; this is the claim by a son of land which previously belonged to his father. The right of the landowner to alienate the land was restricted; this was only allowed under certain circumstances with the consent of his heirs. With the consent of the lord and the kindred, the landowner could use a system known as prid. The land would be made over to a third party, known as a pridwr for a period of four years, and if the land had not been redeemed by the owner or his heirs at the end of the four years, the prid could them be renewed for four years at a time without further limitations. After the lapse of four generations, the land passed permanently to the new owner.

The justices' test book

This is only a separate section in the Iorwerth Redaction; in the other versions the material is incorporated in the "Laws of the country" section. It is a compilation of the rules for dealing with the "Three Columns of Law", namely cases of homicide, theft and fire, and "The Value of Wild and Tame". There are also appendices dealing with joint ploughing and corn damage by stock.

The Three Columns of Law: homicide, theft and fire

Homicide was regarded as an offence against the family of the victim rather than against the king. It was normally dealt with by the payment of galanas by the killer and his family to the family of the deceased. The killing was considered more serious if, for example, it was from ambush, in which case double the standard galanas was payable. The Nine Abetments of Homicide are also described; these include pointing out the person who is to be killed and giving counsel to the killer. A person who witnessed a killing and failed to protect the victim was also held liable in law. The punishment for a person found guilty of one of these abetments was a fine, which went to the lord rather than the kin of the victim. A killer by poison could be put to death by the lord.

Robbery by force was considered less serious than theft by stealth, the latter being one of the few crimes for which the death penalty was prescribed in certain cases. For the death penalty to apply, the thief had to be caught with the goods in hand and the goods had to be of the value of four pence or more. A thief could also be banished, and would be liable to the death penalty if found in the country after having been sentenced to banishment. However there were exceptions in the case of theft, for example in the Book of Blegywryd:

a necessitous person who has traversed three settlements, and nine houses in each settlement, without obtaining either alms to relieve him or provisions, though he may be caught with stolen eatables in his possession, he is free by law.

The Nine Abetments of Theft are listed, for example receiving part of the stolen property. Again these are punished by a dirwy, the money going to the lord. The same applies to the Nine Abetments of Fire.

The value of wild and tame

"The value of wild and tame" gives the values of various animals, for example:

the value of a cat, fourpence. The value of a kitten from the night it is born until it opens its eyes, a penny, and from then until it kills mice, two pence, and after it kills mice, four pence ...

A guard dog, if it is killed more than nine paces from the door is not paid for. If it is killed within the nine paces, it is worth twenty-four pence

Values are also given for trees, equipment and parts of the human body. The value of a part of the body was fixed, thus a person causing the king to lose an eye would pay the same as if he had caused a villein to lose an eye. However he would also have to pay sarhad, and this would be far greater for the king than for the villein.

Administration of the law

The main administrative divisions of mediaeval Wales were the cantrefs, each of which was divided into several commotes. These were of particular importance in the administration of the law. Each cantref had its own court, which was an assembly of the "uchelwyr", the main landowners of the cantref. This would be presided over by the king if he happened to be present in the cantref, or if he was not present by his representative. Apart from the judges there would be a clerk, an usher and sometimes two professional pleaders. The cantref court dealt with crimes, the determination of boundaries and matters concerning inheritance. The commote court later took over most of the functions of the cantref court. The judges (Welsh ynad) in Gwynedd were professionals, while in south Wales the professional judges worked together with the free landowners of the district, all of whom were entitled to act as judges.

A person accused of a crime could deny the charge by denying it on oath and finding a certain number of persons prepared to go on oath that they believed his or her own oath, a system known as compurgation. The number of persons required to swear depended on the gravity of the alleged crime; for example denying a homicide could require 300 compurgators, while if a woman accused a man of rape, the man would have to find 50 men prepared to swear to his innocence. For lesser crimes a smaller number would be sufficient. Witnesses could also be called, including eye-witnesses of the crime (gwybyddiaid). A witness who has once been proved to have given false testimony on oath was barred from ever appearing as a witness again.

The task of the judge, having considered the case, was to determine what sort of proof was appropriate and which of the parties was to be required to produce proof, whether by the calling of witnesses, by compurgation or by pledges, then in the light of the proof to adjudicate on the case and impose the appropriate penalty in accordance with the law if a penalty was called for.

According to the Iorwerth Redaction, a prospective judge had to be at least twenty-five years of age and his legal knowledge has to be approved by the Court Justice:

... when his teacher sees that he is worthy, let him send him to the Court Justice, and it is for the Court Justice to test him, and if he finds him worthy, it is for him to send him to the Lord and it is for the Lord to grant him justiceship ... And it is for him to give twenty-four pence to the Court Justice as his fee.

It was possible to appeal against a judge's decision, and the apellant could demand that the judge show the authority of a book for his judgment. The consequences for a judge could be serious if his judgement was reversed, involving a financial penalty equivalent to the value of his tongue as laid down in the values of the parts of the body. He would also be banned from acting as a judge in future.

Welsh law and Welsh nationality

Wales was divided into a number of kingdoms and only at times was a strong ruler able to unite these into a single realm. It is frequently stated that Welsh law demanded the splitting of a kingdom between all the ruler's sons, but this is not strictly correct. All the Redactions mention the edling, the heir to the throne, chosen by the king from among his sons, including illegitimate sons, and brothers. Each of the other sons was entitled to a share of land within the kingdom, a similar system to appanage, but the laws do not prescribe the division of the kingdom itself, though this was frequently done to avoid civil war. The Law of Hywel was one of the most important unifying factors, applied in all parts of Wales with only minor variations. In the section on the laws as applied to an alltud, a foreigner coming to live in the kingdom, only a person from outside Wales was an alltud; a person from Deheubarth moving to Gwynedd, for example, was not an alltud.

Welsh law usually applied in the Welsh Marches as well as the areas ruled by Welsh princes. In the event of a dispute, the first argument in the border regions might be about which law should apply. For example when Gruffydd ap Gwenwynwyn was in dispute with Roger Mortimer about some lands, it was Gruffydd who wanted the case heard under English law and Mortimer who wanted Welsh law to apply. The matter went to the royal justices, who decided in 1281 that since the lands concerned lay in Wales, Welsh law should be used.

Welsh law came to be a particularly important badge of nationhood in the twelfth and thirteenth centuries, particularly during the struggle between Llywelyn the Last and King Edward I of England in the second half of the thirteenth century. Llywelyn stated:

Each province under the empire of the lord king has its own laws and customs according to the peculiarities and uses of those parts where it is situated, as do the Gascons in Gascony, the Scots in Scotland, the Irish in Ireland and the English in England; and this conduces rather to the glory of the Crown of the lord king than to its degradation. And so the Prince seeks that he may be able to have his own Welsh law ...

The Archbishop of Canterbury, John Peckham when involved in negotiations with Llywelyn on behalf of King Edward in 1282 sent Llywelyn a letter in which he denounced Welsh law, stating that King Hywel must have been inspired by the devil. Peckham had presumably consulted the Peniarth 28 manuscript which was apparently held in the library at St. Augustine's Abbey, Canterbury at this time. One of the features to which the English church objected was the equal share of land given to illegitimate sons. Following Llywelyn's death the Statute of Rhuddlan in 1284 introduced English criminal law into Wales: "in thefts, larcenies, burnings, murders, manslaughters and manifest and notorious robberies — we will that they shall use the laws of England". Nearly two hundred years after Welsh law ceased to be used for criminal cases, the poet Dafydd ab Edmwnd (fl. 1450– 80) wrote an elegy for his friend, the harpist Siôn Eos, who had accidentally killed a man in a tavern brawl in Chirk. Siôn Eos was hanged, and Dafydd ab Edmwnd laments that he could not have been tried under the more humane Law of Hywel rather than "the law of London".

Welsh law was still used for civil cases such as land inheritance, contracts, sureties and similar matters, though with changes, for example illegitimate sons could no longer claim part of the inheritance. The Laws in Wales Acts 1535–1542 brought Wales entirely under English law; when the 1535 Act declares the intention utterly to extirpe alle and singular sinister usages and customs belonging to Wales, Welsh law was probably the main target.

Welsh law after the Laws in Wales Acts

The last recorded case to be heard under Welsh law was a case concerning land in Carmarthenshire in 1540, four years after the 1536 Act had stipulated that only English law was to be used in Wales. Even in the 17th century in some parts of Wales there were unofficial meetings where points of dispute were decided in the presence of arbiters using principles laid down in Welsh law.

Antiquarian interest in the laws continued, and in 1730 a translation by William Wotton was published. In 1841 Aneurin Owen edited an edition of the laws entitled Ancient laws and institutions of Wales, and was the first to identify the various Redactions, which he named the "Gwentian Code" (Cyfnerth), the "Demetian Code" (Blegywryd) and the "Venedotian Code" (Iorwerth). His edition was followed by a number of other studies in the late 19th and early 20th centuries.

Carmarthenshire County Council has set up the Hywel Dda Centre in Whitland, with an interpretative centre and garden to commemorate the original council.