The Legal History of Wales

Thomas Glyn Watkin

• Publisher: University of Wales Press
• Year: 2012
• ISBN:
  9780708326404
• Edition: 2
• Topic: Jura
• Subtopic: Rechtsgeschichte

Watkin provides a history of the various legal systems by which Wales and its people have been governed over the last two millenia, including the civil law of Rome, the laws of the native Welsh people, the canon law of the Church and the English common law. This book shows how in each age the people of Wales have adapted to and adopted the legal traditions which they have encountered and assesses the importance of this inheritance for the future of modern Wales within both Europe and the wider international community.

1

Pre-Roman Britain

Modern Wales has both a natural and a man-made boundary. Its natural boundary is its coastline, which bounds it to the north, west and south, while its man-made boundary separates it from, or joins it to (according to one’s point of view), England to the east. This eastern boundary was not defined until the sixteenth-century Act of Union, which united the two countries politically and legally. For a thousand years previously, the demarcation of Wales and England had been a zone rather than a boundary line, a zone known to this day as the March, an area encompassing most of the modern border counties created by the Act of Union – the shires of Glamorgan and Monmouth, of Hereford and Brecon, Montgomeryshire and Shropshire, of Denbigh and Flint. The distinction of Wales from England was not merely geographical, but rather the geographical expression of a division between two peoples, the English having invaded most of the island following the departure of the Romans, the Welsh in the west being descendants of the natives who had lived throughout the island during and indeed before the Romans came. Before that invasion, what is now Wales was not a distinct entity from what is now England, both being parts of Roman Britain.1

The island which the Romans were to call Britain was inhabited before they arrived, but their arrival, under the leadership of Julius Caesar in 55 and 54 BC, marks the first defined date in British history. Caesar’s forces did not occupy or settle Britain. Their invasion was short-term, but did institute links between the south-east of the island and the European mainland across the narrow sea. This link was to inaugurate trade between the mainland and Britain, a link which was destined to change the main trade route between Britain and the continent. Before the Roman incursion, the main trade routes between Britain and Europe had tended to follow the western seaboard. From Caesar’s time onwards, overland links to the Channel ports began to dominate the native economy.

The inhabitants of Britain at the time of Caesar’s invasion did not possess a literary culture. Writing was not an art at their disposal. This is why Caesar’s invasion is the first known date in British history, for it was recorded in the annals of a literate people, the Romans. The Romans and the Greeks, however, were exceptional in ancient Europe in having a literary culture. Such cultures were otherwise confined to the Middle and Near East, but Greek and Roman influence would leave writing and a literary education as a legacy in many lands. Like many peoples who lacked a written culture, the native British compensated with a highly developed and sophisticated oral tradition. By feats of memory which astonish those accustomed to commit what they wish to recall to writing, they were able to communicate from one generation to the next vast quantities of information and guidance concerning their religion, their customs, their practices and their history. It is known from the Roman record that they achieved this in part by their famed eloquence and highly developed arts in speech and poetry. The structures and devices of their poetic composition made for ease in their commission to memory, guaranteeing their ready recollection.2

The lack of written evidence concerning Britain and therefore Wales before the coming of the Romans means that virtually nothing can be known about the laws and customs by which the early inhabitants of this island lived. The first firm evidence which has survived of law and its enforcement within Britain relates to the Roman period. The earliest written evidence which has survived of specifically Welsh laws comes arguably from the tenth century, but has survived in manuscripts which were compiled later in the twelfth and thirteenth centuries of the Christian era, leaving open the possibility that there had been interpolation in the intervening period if not whole-scale re-composition. Even if these laws are accepted as being those of the tenth-century ruler, Hywel Dda, and it is also accepted that they contain the material relating to the customs of the Welsh in earlier times, one must still face the fact that they are separated from the pre-Roman age by a thousand years. It would clearly be foolish to take them as representative of the customs of native Britain before Roman times. It must also be remembered that, for much of the Roman period, Britain was not a militarily occupied territory; it was a part of the Roman empire in the full sense, meaning that all of its free inhabitants were Roman citizens and therefore entitled to utilize and live by Roman law. Even after the Roman legions left, there is widespread evidence from other neighbouring parts of the abandoned empire that the native citizens continued to live by, indeed clung to, Roman law as part of their Roman heritage.3 As it is known that the native people of Wales retained much of their Roman heritage, from the dragon flag of the legions to the Christian faith, the possibility that they continued to use Roman rules and not just Roman roads requires serious contemplation. The influence of Roman law, the law of the Christian Church and the law of the Bible needs to be taken into account when assessing the extent to which the medieval laws of Wales are based on native British custom. Immigration from Ireland, Scotland and the Isle of Man in the post-Roman period may also have led to imports of legal practice, and these sources of legal influence must be taken into account, together with that of Anglo-Saxon England from the time of Alfred onwards.

In other words, if one is to find anything of pre-Roman native British custom in the laws of medieval Wales, one must first strip away all elements which are or may be derived from Roman, canon, biblical or Irish law. Anything which is similar or identical to the laws to be found in such sources is suspect as far as attribution to the native British is concerned. What is left at the end of such an exercise is likely to be very little, and even then one has to contemplate that it may be left because of the incomplete nature of modern knowledge of, in particular, Irish law. Nevertheless, some things may remain, and these will be persuasive if they correspond to the little of what is known about life in pre-Roman Britain from archaeological and later literary sources, such as what the Romans recorded about the natives or elements in the later literary record of the British themselves.4 Although little may have survived, all may not be lost.

One very interesting instance of this relates to the use of triads within the later legal texts. This is the device of grouping things in threes, with the probable intention of thereby rendering the subject matter more readily memorable. Such a mnemonic device suggests that these triads, which are very common in medieval law texts, were originally composed with a view to oral rather than written transmission. In other words, the triadic presentation of legal rules may be a technique which survived from the time before the Romans brought a written culture to these shores. While such triadic devices also exist in the Irish literature, the significance of threes in native British art confirms that triads were not exclusively an Irish phenomenon.5

Among those educated in the oral tradition of the native peoples, there were certainly the druids. Caesar described the druids of Gaul as judges and advisers to the rulers, a description which has been doubted, although it is important to remember that Caesar was writing for a Roman audience and sought to express himself in terms which his readership would understand.6 In medieval Ireland, druids (druíd) were differentiated from the poets-cum-seers (filid), the legal scholars (brithemin) and those entrusted with the traditional genealogies and history (Senchaid). All however formed part of the protected intellectual class, who learnt their crafts in darkened rooms by memorizing the oral traditions in the form of songs. The chief druid was regarded as the equal of a king in status.7 While there is no evidence that druids in Britain ever played a political role, they are recorded as having exercised religious functions, for instance cursing the advancing Roman army of Suetonius Paulinus on the shores of the Menai Straits in AD 60.8 In medieval Wales, many of the functions attributed to the Irish filid, brithemin and Senchaid were the concern of the bardd teulu, the court poet, who not only sang and recited for his patrons, but also preserved their genealogy and family history in poetic and later written form as well as acting as tutor to their children.9 The structure of the Welsh princely court as recorded in the law texts emphasizes the place of the poet, the priest and jurist alongside the ruler, and it is tempting to speculate that perhaps all these roles were once occupied by the same person, much as in regal Rome the king had once performed the functions of not only the religious rex sacrorum, but also the political and judicial functions later to be performed by the republican magistrates.10 At Rome also, legal advice in the republic was initially given by a priestly caste, the College of Pontiffs headed by the Pontifex Maximus, until this function was taken over by professional jurists, leaving the pontiffs with their ritual role alone.11 This is however pure speculation; there is insufficient evidence for any certain conclusions to be drawn.

Tacitus reports that, after Suetonius Paulinus had stiffened his men’s resolve to confront and defeat the somewhat weird British array which challenged and cursed them on the Anglesey shore, he proceeded to destroy the sacred groves of the druids upon the island. The groves were almost certainly of oak, a tree which was valued above all others in the medieval law texts, although this was for its use in building castles and fortifications, albeit a churchyard yew was allotted the same value due to its religious dedication.12 Pliny the Elder has a story concerning what is thought by some to be an oak apple, a rare fruit which was believed in druidic lore to grant the possessor powers of victory in litigation.13 The Romans certainly believed in the power of the curse,14 and in the Lives of the later Welsh saints, there is a strong emphasis upon the power to cause miraculous damage by cursing, which may be an Irish influence or the re-emergence of a native druidic tradition.15

The druids were also however implicated in human sacrifice, believed to have been performed in the sacred groves. Caesar, Tacitus and Strabo all affirm this practice. The blood of captives taken in war was, according to Tacitus, poured over the altars in the sacred groves, and the entrails of sacrificed humans examined for divine portents. The practice of killing enemies captured in time of war was commonplace in the ancient world, but was significantly abhorrent to the Romans. Roman law provided for the enslavement of enemies taken in time of war, a rule ascribed to the ius gentium, the law of all nations, but in truth only the Romans themselves and the Greeks stopped short of killing their captives. The ius gentium ascribed the condition of slavery to two possible sources, hostile capture and birth to a slave woman, the former of which must be logically prior to the latter. In Latin, the word for a slave, servus, derives from the verb servare meaning to save. The Roman slave was therefore one who had been saved, that is spared from execution after capture in time of war, and thereafter was destined to serve, servire, his captors. A slave was one saved to serve. Nevertheless, the fate of an enemy captured by the Romans was markedly different from that of one taken by the native British.16

The British also dedicated to their gods the spoils of war generally, sacrificing all living things to their deities and hoarding their other spoils in consecrated places as gifts to the gods, sometimes giving them to the gods by casting them into sacred lakes or rivers.17 The archaeological record bears witness to such lacustrine deposits. Again, there is a marked difference with the laws of the incoming Romans. Roman law allowed the spoils of war to be taken into the ownership of the captor in the same manner as captives were taken as slaves.18 The British viewpoint was that all spoils were reserved for the gods, probably on the basis that victory had been given by them and therefore to them belonged the profit. To retain goods taken in war or to spare a captive would probably have been deemed sacrilege.19 An interesting parallel is the account of Saul’s failure to sacrifice all he had taken in battle from the Philistines.20 As a consequence, he lost divine favour and the kingship became destined to pass to others than his heirs. This is no more than a parallel, but one which highlights the methodological difficulties in discovering the legal practice of pre-Roman Britain, for in the absence of the archaeological and Roman literary evidence one would have to disclaim any later mention...

Table of contents

• Half Title
• Title Page
• Copyright
• Dedication
• Contents
• Preface to the Second Edition
• Preface to the First Edition
• Abbreviations
• 1. Pre-Roman Britain
• 2. Wales in the Roman Empire
• 3. The Sub-Roman Period
• 4. The Age of the Native Princes
• 5. The Norman Invasion and Edward I
• 6. The Later Middle Ages
• 7. The Tudors and the Union with England
• 8. The Age of the Great Sessions
• 9. The Nineteenth and Twentieth Centuries
• 10. Devolution and Legal Identity
• Notes
• Glossary
• Bibliography