Sir Goronwy Edwards had said that two things in special had made the Welsh a nation: the language and the law. Utilising primary sources (namely medieval Welsh literature in the form of the law books), and secondary sources (in particular hi

The laws were based on the customs of native Welsh people (a Volksrecht). This illustrates the fact that Wales was distinctive, that native law was to be preserved and pleasing the Welsh people was at the forefront; a driving force behind the maintenance of its distinctive national consciousness. Dafydd Jenkins comments on how exceptional the Welsh law books are: “There seems to be nothing in medieval legal literature which is quite like these Welsh law books.” Therefore, Wales was exclusive in its judiciary, and ahead of other nations, marking itself off as a “potent force”. 

The striking fact about these law books is that they display the evolving nature of Welsh law to fit with the changing customs, and political landscape, of the Welsh nation. If a contrast needs to be drawn between Wales and another nation; medieval Irish law was static: “sacred, unchanging, and obsolete canon.” Whereas, Welsh medieval law was flexible: “responding (albeit slowly) to social changes and to legal ideas.” 

The ability for the Welsh jurists to update the law shows the capability and sophistication of the learned Welsh people. Edwards comments on how the jurists advanced the law from the time of Hywel: “They built on foundations which he had laid, and when they rebuilt, that they did so with stones which he had hewn.” The intelligence of the jurists can be compared to the tradition of poetry, which is deep in Welsh history. This link furthers the distinctiveness of the Welsh people, and demonstrates their talent in literacy, ensuring the maintenance of national consciousness.

The law books therefore are pieces of legal literature which tie together historical traditions with modern customs, proof of the developing Welsh law through the Middle Ages. These compilations are evidence of the special ability that medieval Welsh law has in ensuring the distinctiveness of the Welsh. The fact that the Welsh people follow the laws, and the fact that the Welsh law evolves to suit the people is a perfect example of how Wales was united with a national consciousness. I will now look at different areas of the Welsh medieval law, discussing and paying most attention to the distinctive areas.

 

The first area which requires discussion are the laws of the King’s court. The law books emphasise the rights of the king, this is because: “for the consolidation of royal power was one of the main aims of those who compiled them.” The king was the figure who would control the nation; his aims have a direct impact on the maintenance of a distinctive national consciousness, therefore, it is right that he is afforded such powers. In each law book, the law regarding the king is the first area to appear. An important law to mention relates to the queen; she has a higher status than the court officials and also receives one third of the king’s income which she is to use for personal matters. This is an excellent example of one of the primary features of Welsh medieval law; the status of women. Welsh women in the Middle Ages are treated remarkably well, considering the time. The law of women will be examined further in the paper.  The king can choose his successor from his immediate male relations; however persons with a physical disability are not permitted.  This however is contradictory to native Welsh tradition, whereby succession would pass through the sons. This was the case with Rhodri Mawr and Cadell. Therefore, because the law books state that a successor can now be chosen, this is a clearly contrary to native tradition and hinders the ability for Wales to maintain a national consciousness.  This is further supported by the possibility that the law on succession may be mirroring Diocletian; the Roman Empire reforms, and also Irish Law.  The law of Hywel Dda was customary law, however, Davies suggests: “The first step towards public law has been taken when the state insists upon at least a portion of a fine.” The law books state that a third of the galanas belonged to the king; also he received the maerdred and the dawnbwyd. Does this represent a shift in customary law towards public law? If one agrees with Davies’s suggestion, then it would imply that the Welsh medieval laws relating to the King are going against tradition and national consciousness.

Social structure is an interesting area in the Welsh law books. The law books state that men were not equal; they were either free or unfree.  The free classification included the bonheddwyr and the relations of the king. The unfree included the taeogion (villains) and caethion (slaves). Over half of the population of Wales were part of the free classification. In the Middle Ages, most of the other nations in Europe “lived in a degree of bondage”, thus emphasising the distinctiveness of the Welsh laws.  However, recent research by Leslie Alcock suggests that in reality, most were of the unfree status, and a note in the Domesday Book confirms this. Therefore, the free and unfree classifications seem to produce conflicting arguments when determining their importance in the maintenance of a distinctive national consciousness, and thus they should not be relied upon.

Alcock, among other historians, believes that the law relating to the cenedl originates from the ancient Celtic way of life. Cenedl describes a tribal unit which has an agnatic descent. This shows that ancient Welsh traditions have remained strong, adding to the national consciousness of Wales.

The Welsh had always distinguished themselves from other nations, and this distinction was made official in the law books. This law ensured the unity of the Cymro (Welsh), and marked them off from the alltud (Alien). This is a great representation of a Welsh medieval law which ensures the maintenance of a distinctive national consciousness. Davies agrees: “That definition was a cardinal affirmation of the distinctiveness of Wales as a country and of the Welsh as a people.” The alltud were given certain advantages when in Wales: “The custom of the Welsh was that such a visitor was not to be refused food and hospitality.” Free assistance was given to the alltud during litigation, and if the alltud remained on the same land for four generations (provided it was under the commendation of a lord) they would become free Welsh. The treatment of the alltud is remarkable and shows the Welsh as a generous people, however I cannot say it makes the Welsh distinctive, because it is similar to the Irish, and the Burgundian laws of Gundobad.

The Welsh medieval laws relating to women and children are, in my opinion, the most distinctive and remarkable of all the laws.  It is far superior to the law of other nations, where women were considered as the property of their men folk. Davies agrees: “The status of women under the Law of Wales was in many ways higher than it was under others of the legal systems of Europe.”  In England, a husband gained unrestricted access to the property of his wife; this was not the case in Wales.  Children were not without rights. Compensation was permitted if a husband was unfaithful to his wife, or a woman was the victim of rape, and divorce was justifiable: “Every woman is to go the way she willeth freely, for she is not to be home-returning.” Rhys and Brynmor-Jones remark: “One of the most noticeable things about the status of women in these laws is the freedom accorded to her both before and after marriage.” Dafydd Jenkins suggests that “The Law kept the Church in its place.” This is totally different from other nations, marriage was seen as a contract, and the law realised that marriage could come to an end and so accounted for such a scenario. This is a very modern way of thinking, evidence that the Welsh Medieval laws were advanced and distinctive. The fact that women had such rights ensured that a distinct national consciousness was maintained. The law on martial separation is similar to Roman law; therefore, this indicates that the Romans could have possibly had an influence. Despite this, the Welsh law can still be compared to other nations where the Romans would have had an influence too, and yet the Welsh decided to continue giving rights to women rather than removing them. The law books gave guidance on areas such as division of property if a divorce was to occur, Jenkins and Owen comment: “The rules are no doubt meant to ensure that both parties are reasonably provided for.” This furthers the argument that the law relating to women ensured the maintenance of a distinct national consciousness.

Much to the resentment of the Canon law, children did not have to be of a legitimate relation to their father in order to inherit property. As long as a father was prepared to acknowledge a child, that child would have rights.  The following passage from one of the law books describes the rule:

“The law of the church says that no one is entitled to patrimony [tref tat] save the father’s eldest son by the proper wife [o’r wreyc pryaut]. 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.”

 Davies comments: “The chasm between legitimate and illegitimate children was foreign to the Law of Wales.”  The above two references highlight the advanced thinking of the Welsh medieval Law. In the majority of nations during the Middle Ages, giving an illegitimate son rights would be unthinkable. Yet in Wales it was practiced, and practiced successfully. It bears a slight resemblance to the modern day method of adoption, therefore it emphasises the distinctiveness of the Welsh medieval law.

Property law was governed by the practice of cyfran. The uchelwyr enjoyed land rights collectively. In charge of the household would be the penteulu, and the name of the family holding was gwely. When the penteulu died, the tir gwelya would pass to the deceased’s sons who would then own it jointly. This system is very similar to the practice under the Roman consortium, and also comparable to the medieval Irish practice. These similarities would lead one to believe that this was not a Welsh tradition, and thus did not add to the national consciousness of Wales. However, on closer inspection, Green and Howell in their text Celtic Wales show that there is evidence that the roots of cyfran are buried deep in Welsh history; in the Iron Age. Therefore, cyfran is a native Welsh tradition which dates back countless years. This continuation of tradition demonstrates that parts of the Welsh Law are based on long-standing tradition, reiterating the maintenance of national consciousness. However, Roman influence continues to be seen in other areas of medieval Welsh property law. The Welsh laws regarding the separation of boundaries, whereby they should be distinctly separated, mirrors Roman practice. Watkin comments on similarities with the Roman law on the acquisition of other property, most notably, the law that if a fish was caught using a trap or similar device, then the fish would be divided between the lord and the captor: “The law books also discuss the acquisition of other forms of property in a manner which is very reminiscent of the works of the Roman jurists.” Another reflection of Roman Practice can be seen with succession. It has been shown that in South Wales daughters would take equal shares to sons when succeeding land from the deceased.  These Roman influences therefore question the validity of the distinctiveness of the Welsh medieval law on property, the laws are not solely from the Welsh people, so it could be said that it does not even add to the maintenance of national consciousness.

The Welsh medieval law on contract heavily echoes the Roman contract law, so I will not discuss those areas as it clearly does not add to the distinctiveness of the Welsh Law. However, there is one major point which warrants a mention, the point of cyfnewid (sale and exchange). Watkin explains: “One major difference between the Welsh laws and Roman law was their refusal to differentiate between sale and exchange.” The Welsh regarded sale as a form of exchange, one possible reason for this was the lack of a currency. The fact that all commercial transactions were completed by exchange emphasises the distinctiveness of cyfnewid. As a nation without a currency, the law books were able to maintain a national consciousness by expressing contract law whereby transactions were by way of exchange; a perfect example of the distinctiveness of the Welsh.

Within the Welsh medieval law of wrong-doing, there were three columns; homicide, theft and arson. The most characteristic feature about the laws of wrong-doing is the preference to compensate rather than harsh punishment. An example is the galanas, which is a fine paid to the kindred of a killed man. Davies comments: “It represented an attempt to tame the desire to shed blood in avenging a wrong.” This illustrates the attitude of the Welsh people, they knew that bloodshed was not preferable, and so ensured that compensation was a viable alternative. This played a successful part in the maintenance of their national consciousness. Another intriguing law is that there was an honour-price for unborn children, protecting them, suggesting “ecclesiastical influence”. This emphasises the advancement and benevolence of the Welsh laws.  There is a link to the ancient tradition of the Druidic status in that a king, priest and a bard could escape punishment.  This highlights the fact that ancient Welsh customs impacted on the medieval Welsh laws, demonstrating the distinctiveness. If a person was subject to a verbal insult, they would receive a payment from the wrongdoer, this was known as sarhad, and has resemblances to the ancient Celtic customs. Again, proving the distinctiveness of Welsh law.  Jenkins appropriately concludes the situation relating to the law wrong-doing: “The medieval Welsh lawyers seem to have a clearer vision than their English contemporaries (and indeed, a clearer vision than most twentieth-century English lawyers).” I completely agree.

A thought-provoking area of the administration of Welsh law is iudex qui litem suam fecit (the wrong doing of a judge because of his own cause). This has striking similarities with Roman law. If it was found that a judge gave an incorrect judgement, the judge could be sued and disqualified from judging. In the modern day, this law would be very harsh, but in medieval Wales, it strengthened the nation. The realisation in the law books that a judge could be wrong and thus must be made answerable is further evidence of the distinctiveness of the law. The role of the judge was very different in medieval Wales to the present day, as Maitland explains: “in modern courts, trial precedes judgement; in medieval courts, judgement precedes proof.” Therefore, the punishment of a judge was fitting, and helped maintain the national consciousness.

Several of the laws I have discussed have a Roman influence, so because of this, we must consider whether the Welsh medieval law was actually distinctly Welsh. It is not a unique Welsh trait if the law was influenced by the Romans; however, since the Romans were in Wales for many centuries and actually Romanised Wales, there is a counter argument. Because the Romans were such a big part of Welsh history, it could be said that they helped shape Wales into the nation it was in the Middle Ages, and the nation it is today. If there was no influence by the Romans, perhaps Wales would be far less sophisticated than it was when codifying and producing such laws. Consequently, I believe that the Roman influence did actually play a minor part in the distinctiveness of the Welsh laws, and the maintenance of a national consciousness. The Romans had a link to the sophistication of the Welsh, and this link had an impact on the fact that Wales was recognised as a potent force.

The Welsh medieval laws I have examined indicate how they were distinctive and unique, and how they were important in maintaining a distinctive national consciousness. However, there are several points which require discussion. Hywel Dda, who originally codified the laws, was a great admirer of Alfred of Wessex. Some argue that this admiration possibly influenced his law-making. Hywel Dda went on a pilgrimage to Rome to meet with the Pope, again possibly influencing the law-making. Therefore, there is a very minor argument that the Welsh laws were codified because of outside influences, this would lead to the Welsh laws not being as distinctive. Harding suggests that the story of Hywel codifying the law was myth, created for political purposes. However, Jenkins dismisses that argument: “This certainly goes too far.” I agree with Jenkins, as discussed earlier in the paper, all evidence suggests that Hywel was the person who codified the laws, and initiated the beginning of a distinctive national consciousness through the laws. We must also keep in mind that these law books may contain invalid or out of date information, Jenkins explains: “They may on the one hand be obsolete; on the other hand they may sometimes set out, not the actual practice of the time, but what the compiler thought ought to be the practice.” Therefore, we should not place all our stones in one basket with regards to these Welsh law books; however, they are the only evidence we have, so we must appreciate their worth.

In the statement by Sir Goronwy Edwards, he observed that as well as the law, the Welsh language also marked the Welsh off from other nations and strengthened the national consciousness.  I will therefore briefly consider the extent to which the Welsh language impacted Wales as a nation, and a few other minor points regarding the Welsh.  Davies states “Language and a common literacy tradition were other important elements in creating an awareness of Welshness.” The Welsh language was the symbol of being Welsh, unifying the nation and separating itself from others. If an individual could not speak Welsh, they would be branded as an alien. Davies goes on to state: “Language was becoming one of the badges of national identity.” The Welsh language had a tremendous impact on the maintenance of a national consciousness, and since the law was written in Welsh, Wales marked itself off from other nations as a distinctive potent force: “Since Welsh was the language of the law, the Welsh language had a publicly-expressed dignity which English did not have in England.” The Welsh also excelled in literacy during the middle ages and this helped distinguish Wales: “Literacy tradition also played its part in forging a sense of common Welsh identity.” Koch explains: “Hywel’s period was marked by an outburst of literacy activity.” This further distinguishes the Welsh from other nations, and is an excellent symbol of the sophistication, talent and intelligence of the Welsh people. Furthermore, the Welsh were known as the Cymry, Davies explains: “which highlighted their awareness of themselves as ‘compatriots’.” Pryce comments on the significance of such names: “The names used to define countries and peoples have figured prominently in studies of how national identities were articulated in modern Europe.” This emphasises the fact that by calling themselves the Cymry, the Welsh were forging a distinctive national identity, maintaining and improving their national consciousness. Pryce comments on how historians identify if national identity was present in the Middle Ages: “This was based partly on a shared language and culture, often reinforced by a belief in common origins, and partly on a sense of belonging to a particular territory.”  Wales in the Middle Ages certainly had all of these traits, and therefore, in my eyes, certainly had a distinctive national identity.

I have thoroughly discussed the distinctive Welsh medieval laws, and how they contributed in maintaining a national consciousness. In the centuries following the fall of the Roman Empire, Hywel Dda made a significant milestone in Welsh history; the codification of the Welsh laws.  Around 250 years after the death of Hywel Dda, the first of the Welsh law books was written. The law books contain the customary medieval Welsh laws from the time of Hywel and most of Middle Ages. The law books spell out the law on many areas, including; the King’s court, social structure, family, property, contract, wrong-doing and the administration of law. Each of these areas I have examined in detail, and argued their impact on the distinctiveness of Welsh law. The law of women and children, for example, was well ahead of its time and a hallmark of the success of Welsh medieval law. It is clear that the medieval laws unified the Welsh people, and gave the nation a unique identity; Davies agrees with this: “Welsh law had been converted into a potent symbol of Welsh national identity.” This statement concurs with Sir Goronwy Edwards, where he said that Wales was a ‘potent force’. Watkin also agrees: “The laws remained a focus of unity.” Finally, Jenkins confidently asserts: “So we Welsh can show good reason for our pride in the native law of our country; and for us our old law is of special significance as one of the elements which made it possible for a politically fragmented people to attain a consciousness of nationhood.” There is no doubt from myself, and the aforementioned historians, that the Welsh medieval laws were distinctive, sophisticated and advanced. They evolved through time to accommodate changing Welsh customs and outside influences, whilst continuing to accommodate the native Welsh traditions. The laws, coupled with the Welsh language and literacy talent truly established the Cymry as an extraordinary nation of people. All of this led to the unification of the Welsh, a unique national identity, and most importantly, a distinctive national consciousness, throughout the Middle Ages.

Word count: 4896

Bibliography

Books

A.D. Carr, Medieval Wales (New York : Macmillan 1995)

Chadwick, The Celts (Penguin History 1998)

Dafydd Jenkins, The Law of Hywel Dda, (Gomer 2000)

John Davies, A History of Wales (Penguin Publishing, 2007)

R. R. Davies, The age of conquest : Wales, 1063-1415  (Oxford University Press 2000)

A.W. Wade-Evans, Welsh Medieval Law: Being a text of the Laws of Howel The Good (OCP 1909)

Green and Howell, Celtic Wales (2007)

John Rhys and Brnmor-Jones, Welsh People, (AMC 2001)

John T Koch, Celtic Culture (2006)

Maund, Welsh Kings, (The History Press 2006)

Dafydd Jenkins and Morfydd E. Owen, The Welsh Law of Women  (1980)

Thomas G. Watkin, The Legal History of Wales, (University of Wales Press, 2007)

Articles

J.C.M. Toynbee ‘Christianity in Roman Britain’, Journal of the British Archaeological Association (3rd ser.), 16 (1963), 1-124

L. Alcock ‘Some reflections on early Welsh society and economy’, WHR, 2(1) (1964-5)

A. Harding, [1984] Judicial Review, 110; ct. A. D. Carr, A Look at Hywel’s Law, 10-12

Pryce, British or Welsh? National Identity in Twelfth Century Wales, English Historical Review, 2001

Other Materials

Huw Pryce, , accessed on 20/01/2011

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