26 Feb 2018
I will first look at Roman Law as this will give me the best understanding to see if Medieval Welsh Law was built up from Roman Law, or whether the medieval law is its own unique system of law.
Wales was part of the Roman Empire for over 300 years. Roman law was unlike the oral culture that Wales possessed before they arrived, as the Roman law was written enabling discipline, where everyone lived and was punished by all the same rules, so not arbitrary.
The procedure of a trial differed somewhat under the Republic and under the Empire. In Republican times justice was administered in accordance with the formulary system named from the formula which was drafted by the magistrate responsible for the administration of justice in the city.
Any citizen could press charges against another through a patronus acting as his advocate. The charge had to be in inscriptione (in writing), signed by both delator and subscriptores (accuser and witnesses) and delivered to the praetor (judge). Praetores were in charge of the law courts and presided over the quaestiones (jurors).
The accused had to be present at the nominis delatio (making a formal charge). The delator and the subscriptores swore oaths that they would not bring false witness and penalties were given against the delator, if himself or his witnesses were later to have been found to have lied. All witnesses could be questioned and subjected to speeches attacking their credibility. Rules for permitting evidence would seem to us to have been very negligent, and the court considered the written word or spoken word as legally binding. To decide the vote, each juror in secret erased a 'C' (Condemno) or an 'A' (Absolvo) from a pre-marked tablet, the praetor (judge) then announced the jury's decision.
Because it was easy to bring suit against another person, there were indeed many lawsuits, as people were enticed by the material rewards if a suit were won. If the accuser won his case, a praemium was given to him. But if he lost, he was deemed to have committed a calumnia (false accusation) or a praevaricatio (collusion, or conspiracy to prosecute falsely) and was fined.
If a criminal was caught red-handed or confessed the deed, punishment was inflicted without trial. If he claimed innocence and was a reputable citizen, trial was held before the praetor; otherwise, he was tried in front of a triumvir. In both instances, an advisory commission (consilium) was called to determine the question of guilt. And in either case, the punishment, personally was severe.
Due to the growth of the Empire trial procedures changed somewhat and a new system was created, known as cognitio. It involved “ligigation being heard and decided by the provincial governor or his nominee, the iudex pedaneurs.” Two appeals were to be allowed in every case, a principle which is still followed in civil law today and has even influenced the structure of appeals in the UK in recent centuries. (Legal history of wales book)
The first step was the postulatio or application for a hearing; then, the nominis delatio, the formal charge by a delator with his subscriptores present; the consuls next summoned the senate to determine if charges should be heard as one charge or should be divided; next was the inquisitio, in which evidence was heard; debate followed and speeches were limited by a water clock then finally a vote on the verdict.
The praetors and propraetors (governors) published a list of principles and formulae of their practices in the form of edicts at the beginning of each term. Although each could effectively alter the formulae, in general the list remained the same. For example “one might legally kill to defend oneself,” this is still recognised by the modern laws of today.
The judge was bound to follow the opinion of the jurists where they were agreed on a point of law, but if there was disagreement, the judge was free to decide the point of law as he saw fit (book). The views of the jurists would be relied upon as legal authority
Before 212AD the Britons had the status of foreigners or peregrines and lived under a separate law to the Romans.
The 3 laws under the Institutes of Gaius were: -
The year 212 AD was very significant as it enabled every free person in Britain to automatically achieve Roman citizenship. This allowed the Britons to be classed as citizens enabling to enjoy all the benefits, the right to live by Roman Law (ius civile) and acquire the protection of the law. Following 212 AD the Britons lived by Roman law within the Roman Empire for almost two hundred years, enabling a significant legal development of the native people.
An example can be shown by how the welsh embraced and so faithfully maintained the Christian religion and the legal order of the church itself was grounded and remained grounded in principles derived from Roman Law. This is represented by the church saying “ecclesia vivit lege romana,” the church lives by Roman law.
Roman citizenship is generally described as an combination of three private law and two public law rights. In public law, citizens had the right to vote in the legislative assemblies – suffragium, also the right to stand for certain public offernces - ius honorum. In private law, the citizen had the right to trade using roman law contracts, the right of commercium, had the capacity to contract a roman law marriage, conubium, and was able to make, witness and benefit under a roman law will, testamenti factio.
Sources of the Roman Law
The jurists expressed the values of the law and decided that the law is not arbitrary and must conform with standards of justice.
The jurist Ulpian wrote, “Justice is the constant and perpetual wish to give every one their due”
The jurists were an important professional class who practised their skills independently of those who argued cases before the law courts as jurists concentrated on jurisprudence. Jurisprudence was to be defined by the jurist Ulpian “as the knowledge of things human and divine, the source of what was just and unjust.”
Ulpian also defined justice as “the constant and perpetual wish to give to everyone their due” This definition underlies the roman practice of allowing slaves and peregrines to earn freedom and citizenship by good works. The writings of the jurists were however a source of law in their own right.
“It is significant that this source of law, quite foreign to the later common law of England, was to have its counterpart in the high respect accorded to jurists in the native welsh laws.”
The father as a parent was important under roman family law, as they saw the family unit a legal unit and thought it was important to protect. In roman law the family unit is greater and more powerful than the common law today. The head of the family was usually the father and was known as the paterfamilias.
Roman Law was ahead of its time in terms of equality for example with Property Law, When property was inherited it was split between all children, not discriminatory like most cultures e.g. sex/race discrimination. So adopted child has the same status and right as a natural child. Concept of anybody – any country, had black generals, by your behaviour you became a roman. Shows they were ahead of their time in concept of equality.
3) For perhaps a thousand years the native law of wales has been known as the law of hywel or cyfraith hywel in welsh or lex hoeli in medieval latin – from law of hywel dda. Cyfraith Hywel, the law of Hywel, was the name by which their native law was known to the Welsh in medieval times. The law of Hywel lost its primacy after the conquest of Wales by Edward I and the passing of the Statute of Wales in 1284, but it remained an important ingredient of the law administered in Wales until the Act of Union in 1536
His reign was a peaceful one. Hywel was in a position to promote reform and uniformity in Welsh law.
The law of Hywel was based on tradition rather than king-made, and is believed to have been adapted from existing laws. Some aspects probably predated his lifetime. The law did not overly stress the power of the crown, but mostly aimed to protect the people of Wales. The native laws were the recorded customs of the people, which is distinguished from Roman Law (the laws of the Emperor) and Canon Law (the laws of the Church.
One advantage which Welsh law enjoyed in the political storms of the thirteenth century was that it had written form. Already in the twelfth century it was felt to be an embarrassment if law remained unwritten. Roman law was embodied in texts, and with the great legal revival of the eleventh and twelfth centuries it was felt that any law worthy of the name should be written.
Hywel dda’s objectives was to examine the law, through this to validate and amend the current laws at this time, even introduce and remove laws, promoting a unified concept of Welsh law
For centuries to come, living under the Law of Hywel would be one of the definitions of the Welsh people.
There was a distinction between south and north wales
Medival welsh law
Praetor or magistrate Elected Has consilium of three legal experts to consult
In south wales, local lord would be the judge, with the advise of a lawyer, and the church would have its own courts for ecclesiastical matters.
North Wales, a professional judge decided cases..
Roman influence – law reporting, use of formula
Quaestiones 32 to 75 jurors, depending on type of case Chosen from album judicum, list of men of senatorial or equites class Verdict decided by majority vote
Usually 12 jurors Selected from a panel of citizens Individually examined, accepted, or rejected by prosecution and defense Verdict usually must be unanimous
C = condemno, A = absolvo By secret ballot Result announced by praetor
Guilty or not guilty By unanimous decision but each juror's vote can be polled in open court Decision read aloud by judge
Accusator Private citizen
Public official elected or appointed
Patronus or advocatus May not accept money, although favors allowed
Professional lawyer Accepts retainer or fee or works pro bono publico
Reus Innocent until proven guilty Kept under house arrest or imprisoned until trial Usually in private home
Innocent until proven guilty Imprisoned or free on bail or own word until trial
Subscriptores, required by magistrate's subpoena
Subpoena can be issued
Scribae to record events
Recorder/stenographer Makes word-for-word transcript of proceedings (required in event of appeal)
The lawbooks do mention some practices which are confined to particular parts of wales, but we shall see that their compliers felt quite free to draw their material from any part of wales with the assurance that it was good law for any other part. –maybe from book
Welsh Medieval Law contains many similarities to the Roman Law that came before it.
An example of this is clearly shown with the law of marriage. Both traditions were contracted informally, without ant ceremony, the mutual intention of the couple to live together as man and wife being sufficient. Boys had to be of the age fourteen and girls twelve, but the girl could not bear children until 14 and not after 40 years of age, this is developed from the same principle as Roman Law. In roman law didn’t discriminate between married and cohabiting couples. Especially in context of children. Status of illegitimate children is still a controversial issue today.
Married women held their own property (but not land) and although came under the protection of their husbands, had rights as members of their own family. The wife would be granted a dowry by her own family, her gwaddol and she would be given a share of her husbands property, her agweddi. The husband giving wife agweddi depending on how you analyse it, as looking at it from as modern day viewpoint then it appears discriminatory.
But back in the period of Hywel Dda the elements of welsh law did protect women, even though it was still a male dominated world the women had a far better status than the laws of England at the time provided for them. After the consummation of the marriage, the wife’s husband would give her a gift known as the cowyll and would also pay her arglwydd an amobr, a payment for taking her virginity.
The church began to increase its powers with the law making decisions, and set out prohibited degrees of marriage, and objected to marriage as far as fifth cousins. The welsh did not agree with this and so were in constant breach of this canon law. However the Romans had a different viewpoint and allowed 2nd cousins to marry which was the same line the Welsh followed.
The Welsh law on marital separation was also similar To Roman Law, if the marriage was dissolved within the first seven years then the wife kept the bounty that she had received at the time of the marriage. If the marriage was dissolved after seven years, the matrimonial property split according to the rules laid out. The rights of the parties also depended on whether the repudiation was with cause. A man could repudiate his marriage if his wife was immoral after marriage, had lost her virginity before marriage, or if there was an underpayment of gwaddol by her own family.
A women could do the same if her husband had committed three adulteries, was impotent, had bad breath, or if he introduced a concubine? To the family home. With regards to Roman law marriage would be terminated if either party repudiated the other (repudium) or both agreed that the marriage was at an end (divortium). The position of women under welsh law differed significantly to that of their Norman-English contempories. Women remained independent and not considered to be the property of father or husband in the same way.
The welsh lawbooks have a combination of crudity and sophistication in the texts, this can be seen on the law of women.
Welsh law showed its equitable and just side by not recognising any distinction between children born within wedlock and those born outside. This was important when determining liability for compensation in the event of commission of wrongs by or towards the child.
I will now look at land law where the uchelwyr enjoyed land rights collectively, with the penteulu, the head of the household nominally in charge. The name for this family holding was gwely, the soms would inherit jointly in equal and individual shares for four generations. However when the father died the property was inherited by the sons only. [I think roman law was more equality based]. Land could not be taken forcibly from lawful owner which is based on roman law.
With regards with property other than land, other property was inherited by all the children in accordance with the law. The wife kept half of her husbands property and the remainder of the land was split with sons taking equally and then finally daughters taking half of that which the sons received. However in certain parts of South Wales, the Roman influence ensured that daughters inherited in equal shares with the sons.
With roman law once the paterfamilias died the family inherited it as a group a unit. In order to split the property between themselves as individuals they had to do so by initiating a procedure an action familiae erciscundae. Otherwise they could continue to hold the property collectively in a consortium.
Water, air and land were open to all, and unoccupied land could be possessed and later owned, if it had been in uninterrupted possession for four generations or more, this also resembles roman law of setting limitation periods for the highly valued land.
Childless couples can adopt children and adopted child has same rights as natural child. Even if the father then remarries and has children, then the adopted child is still the first child and the next in line of the paterfamilias.
Unjust roman laws – being able to discard children who were unwanted (as in with disabilities) but they didn’t have the medical resources that we have today. Plus they thought of disabled children as living with sin. Paterfamilias could put to death his children and his slaves for any act of disobedience or disloyalty.
After observing the welsh medieval law it appears to echo Roman law, however one difference I have noted is that welsh law did not recognise the roman distinction between sale and exchange. A main reason to this may do with the limited supply of minted coins in wales so unable to carry out commercial transactions, and instead carried out echange described as cyfnewid. So in this aspect Welsh Law of Hywel Dda was not as sophisticated as roman law, but Welsh law evolved in a certain way to deal with the economy.
The basis of criminal law in medieval welsh law was the “three columns of the law,” which were homicide, theft and arson. In regards to homicide a killing had to be intentional for there to be punishment, and an unintentional killing would be resolved by compensation only. No compensation payable if the victim deserved to die, only due in the case of accidental killing, galanas.
A physician was liable for the death of a wounded man to whom he gave treatment, particularly when he had failed to apply the skill expected of him. This is recognised in our modern laws of today as a form of professional negligence.
A relict of Roman law is the ritual in confronting the thief, and gaining admission to search premises and requiring the suspect to swear as to whether the property was in possession.
A judge who gave a wrong judgement could be sued, the roman equivalent to this law is known as qui litemsuam fecit.
In medieval wales theft was regarded as a very serious crime and compensation and punishment was awarded. In addition to compensation for the damage caused, there was another form of compensation the sarhad. Sarhad means an insult and has to be intentional, the roman comparison is the iniuria.
As can be clearly identified Welsh law differed to roman law on being a legal system that was compensation based rather than punishment. The reason this may have been the case is due to people in medieval wales saw compensation as a more just payment and solvement of the case. As the economic value in wales was very poor, more people probably would rather the money or equivalent to the money than justice served. So making amends is better than punishment being carried out.
An issue to this was that those who were financially stable would be able to be above the law and commit crimes as they could afford the compensation and wouldn’t have to worry about the repercussions of their actions. As you look more in depth at the law of hywel dda as the state grew stronger, punishment was becoming more important but compensation still had priority. The payment was meant to buy off the vengence of the other group and prevent a blood feud arising.
At the time of medieval Wales the law on issuing compensation rather than punishment to the welsh people probably appeared to them as sophisticated and just. However to modern eyes the Roman law model appears more equitable and just as they punished those at fault and is like our legal system of the 21st century.
“The detail the law books supply with regard to the judicial process of the welsh laws go far to revealing their sophistication.” The administrative system of medieval Wales is like the roman jury system. The sophistication is provided by the roman model as this is the template that is adapted to fit in with the welsh system.
“Different forms of witness were of acute concern to medieval lawyers, for in an age without police or forensic science the problem of proof was particularly difficult. Moreover, in a small-scale society, the difficulty of obtaining impartial witnesses might be severe.” The judge placed specific emphasis on quantity of witnesses, as they believed the more people you had on your side the stronger your case. Yet quantity isn’t quality, as you could have fifty witnesses who are all liars, better to have one truthful person which our modern law system is based on today.
It is also equity based as the medieval welsh law followed the roman law and didn’t go back to the Celtic times of trial by ordeal and instead stayed sophisticated with a legal system put in place by the Romans. The Romans introduced a legal system which is a hallmark of their system, even though it was expensive as they had to give jobs for the legal professions, justice was above this they wanted it to prevail.
A clear and distinctive identity of welsh law is the treatment of foreigners, where they provided privileges for visitors like food and shelter. This maybe due to the type of society formed as Wales was a close knit nation, needing tourism.
Furthermore the Law of Hywel Dda was mainly written in Welsh furthering its distinctiveness of welsh laws.
The laws of courts contain discussion of the status of the king, the members of the royal family. The queen was allotted 1/3 of the kings income for her personal use and that she is accorded a status greater than that of any of the court officers. This reflects the higher status enjoyed by women under the laws of Hywel Dda than in most contemporary legal systems. –maybe from the book.
The Roman legal system is indeed different from what we follow but there are parallels in the roles of the participants, in the value of established procedure and precedent, and particularly in the many Latin terms and phrases that are still part of our legal language today.
Rome's continuing influence on society today is apparent in the government structure and legal system in use in much of the western world. One of the most sophisticated and practical systems of jurisprudence which the world has so far produced, and one merits of which allowed it to re-emerge in not just the medieval law but the legal system of Britain today and as the basis of the family of legal systems known as the civil law. Even the Welsh Dragon of our nations flag is actually symbol of authority by Romans.
Welsh laws are officially regarded as the customs of the people. Distinguished from Roman law, laws of the emperor and medieval welsh laws are different. Enforce a law rather create law. He saw himself as a ruler/governor of Wales not as an emperor, so saw himself as enforcing things.
I think that Roman law was the initial building bricks for the construction of law we know today and even though certain aspects of the law of hywell dda is unique to welsh medieval law, the main foundation is roman.
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