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Welsh law

2007 Schools Wikipedia Selection. Related subjects: British History

   Drawing of a judge from the Peniarth 28 manuscript,
   Enlarge
   Drawing of a judge from the Peniarth 28 manuscript,

   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.

   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.
   Mediaeval kingdoms of Wales.
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   Mediaeval kingdoms of Wales.

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 ("Hen Dy Gwyn ar Daf" in
   Welsh). 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

   A page from the Black Book of Chirk (Peniarth 29)
   Enlarge
   A page from the Black Book of Chirk (Peniarth 29)

   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

   Drawing of a falconer from Peniarth 28
   Enlarge
   Drawing of a falconer from Peniarth 28

   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 pernanently 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-witnessess 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.
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