Product Code Database
Cyfraith Hywel (; Laws of Hywel), also known as Welsh law (),Other names used by some manuscripts include Leges Howeli Boni, Leges Howeli Dha, Leges Howelda, Leges Wallicæ, &c. was the system of law practised in medieval Wales before its final conquest by England. Subsequently, the Welsh law's criminal codes were superseded by the Statute of Rhuddlan in AD 1284 and its civil codes by Henry VIII's series of Laws in Wales Acts between 1535 and 1542.
Welsh law was a form of Celtic law with many similarities to the Brehon law of Ireland and particularly the customs and terminology of the Britons of Strathclyde.Lloyd, J.E. A History of Wales from the Earliest Times to the Edwardian Conquest, Vol. I, p. 287. Longmans, 1912. Accessed 5 Feb 2013. It was passed down orally by jurists and bards and, according to tradition, only first codified during the reign of Hywel Dda in the mid-10th century. The earliest surviving manuscripts, however, are in Latin, date from the early 13th century, and show marked regional differences.Wade-Evans, Arthur. . Oxford Univ., 1909. Accessed 1 Feb 2013. The law is only known to have been revised by a few rulers (particularly Bleddyn ap Cynfyn, who was credited with revisions retained in the kingdom of Powys) but was obviously updated by in response to changing jurisdictions and circumstances, so that the surviving manuscripts cannot be considered an accurate portrayal of Hywel's first code.
Notable features of Welsh law include the collective responsibility of kindreds () for their members; the gavelkind inheritance of land among all and only male descendants; a status-based system of blood money ( galanas); slavery and serfdom; the inability of foreigners to naturalization earlier than the fourth generation; and very lax treatment of divorce and legitimacy that scandalised the non-native clergy.
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.
As each of the manuscripts dates from centuries later than Hywel's time, this statement cannot be used to date the event described above. Professor Huw Pryce has demonstrated that some of the prologues were developed in response to attacks on Welsh law by Church men and Nobles who wished to gain rights more akin to those enjoyed by Ecclesiastics and the aristocracy in England.Pryce, ‘The Prologues to the Welsh Lawbooks’, Bulletin of the Board of Celtic Studies 33 (1986), 151-182 In discussing Hywel's association with the law, K. L. Maund suggests:
On the other hand, 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.
The best that may be said of Hywel's association with the law is that a folk memory recalled a revision and rejuvenation of the law during his reign. 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.
Some of the legal material, such as the tract on the Seven Bishop Houses of Dyfed, may be dated to a very early period of law. Other material bears comparison with Early Irish Law.
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. Sarhad and dirwy are still Welsh words meaning 'insult' and 'fine' respectively,
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 Castle, 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:
Those from outside Wales were considered between serfs and slaves, forbidden to offer testimony, and obliged to pledge themselves to a native Welshman (even a serfWade-Evans, p. .) who would be responsible for them. This status could only be removed after three generations in the north and possibly as many as nine elsewhere, after which the foreigner's descendants were considered to be native serfs.
A number of payments are connected with marriage. Amobr, or commutation-fee, was a fee payable to the woman's lord on the loss of her virginity, whether on marriage or otherwise. Cowyll, or maiden-fee, was a payment due to the woman from her husband on the morning after the marriage, marking her transition from virgin to married woman. Dower ( 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 7 years, the woman was entitled to half the common pool.Jenkins Hywel Dda: the law pp. 310–311, 329 The portion that was immediately accessible during the marriage, consisting usually of linens, dishes, and other domestic items, was known as argyvrau.
If a woman found her husband with another woman, she was entitled to a payment of six score pence (i.e. half a pound) 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.Morfydd E. Owen Shame and reparation: woman's place in the kin in Jenkins and Owen (ed.) The Welsh law of women p. 51 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.Jarman p. 119 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.
Assault or offenses against honor were dealt with in a similar fashion, through a fine called sarhaed. However, it only applied to the upper classes: any serf who struck a free man was liable to have the offending limb removed.
The crime of rape was treated as a theft and remedied by the payment of another fine ( dirwy), payment of which restored the woman's virginity for legal purposes. A man who could not pay the fine was to have his testicles removed.
Similarly, a convicted thief was imprisoned in the first instance, but a serf convicted for the third time was to have his hand removed. (Assuming he was not caught in the act: thieves caught with goods in hand more valuable than four ceiniogau were liable for hanging.Lloyd, p. 306.) Such strong penalties led the Welsh to narrowly define "theft", however: forcible robbery was considered much less serious. Further, a hungry man who had passed at least three towns without receiving a meal could not be punished for stealing food.Richards. The law of Hywel Dda, p. 113
Aiding and abetting including witnessing a killing and failing to protect the victim or receiving stolen property was also punished with dirwy fines.
Although Hywel's commission generally recorded the traditions of the country, one modification they made was to end the right of nobles to trial by combat, finding it unjust.Owen, Aneurin. Ancient Laws and Institutes of Wales: comprising laws supposed to be enacted by Howel the Good and anomalous laws, consisting principally of institutions which by the statute of Ruddlan [sic ] were admitted to continue in force, Vol. II. Public Record Office of Great Britain, 1841. Accessed 5 Feb 2013.
The values given to eyes, ears, nose, lips, hands, and feet are identical; termed as the 'Limbs of equal value' they represent 12.7% of the standard galanas for a boneheddig (A boneheddig is a standard free-man, whose galanas is valued at 3780 pennies/ 63 cows). There are no additional complexities to any of these costs, except when it comes to ears. The Iorwerth manuscripts and LATIN A do not value the ear itself at 480 pennies, instead they differentiate between the loss of an ear and the loss of hearing. If the ear is lost but the victim can still hear, then the price lies at 160 pennies, whilst deafness (even without the loss of ear) retains the 480 penny value. This is a rare example of a 'functional value being given where the loss of the function of the ear... is appreciated and not the organ itself'. Harris notes that although these members are all given equal value, it seems there is some underlying notion that some are perhaps more essential than others (at least in the Iorwerth and LATIN A texts) with hearing being more important than any of the other senses.
Fingers are valued at 80 pence each, whilst a thumb has a value of 180 pence which corresponds to its use in 'gripping agricultural equipment or arms'. The Iorwerth and Cyfnerth 5 recensions value a finger nail at 30 pence, whilst the top of the finger to the first knuckle is valued (in the same texts) at 26 2/3 of a penny. The price of a fingernail as it is valued in Iorwerth and Cyfnerth is 0.8% of the galanas, and intriguingly the thumbnail in the Wessex tariff also stands at 0.8% of the wergild value for the man.7 Harris argues that these similar percentages reflect the co-existence of two legal systems in Wales; the Welsh and the English.
The triad known as the Tri Arberygl Dyn (Three Dangerous wounds of man) specifies three injuries for which
'teyr punt a geyf y nep a archoller y gan y nep ay harchollo'
'He who is wounded shall have 3 pounds from him who wounds him'.These are; when a man is cut so that the brains can be seen, when a man is pierced so his entrails can be seen, and when one of the four posts of the body (the limbs) are broken.
The body parts appear to be classed for compensation based on how much use they have in society. The higher the use; the higher the compensation cost. Loss of hearing, for example, as well as loss of testes and/or penis incur very high redress rates, because their loss will cause either danger or an inability to continue lineage, which was highly important in such a kin-based society. The tongue is also particularly high because, as with the ear, it would have formed the primary means of communication for the victim.
Also notable are the different grades of compensation given to wounds depending on the degree of disfigurement produced by the wounding, with a differentiation between craith ogyfarch; a conspicuous scar which attracts remarks, and craith guiddiedig; a hidden scar which will therefore attract less remarks. The craith ogyfarch afforded the most compensation, but the value of the ogyfarch compensation varied according to its noticeability. The three most conspicuous scars are given as those on a face (six score pence), on a hand (sixty pence), and on a foot (thirty pence), whilst a hidden scar is given only four pence. The Latin texts A and E 'make provision for a cloak to cover facial disfigurement' and front teeth were also accorded a higher value than other teeth.
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.Robin Chapman Stacey, The archaic core of Llyfr Iorwerth in Jenkins and Owen Welsh law of women pp. 22–27
On the death of a landowner ( priodawr) his immovable estate (land) passed in joint tenancy ( cytir) to his sons, similar to the gavelkind system of Kent. Then the youngest son partitioned ( cyfran) the land equally, and each brother took his share. Illegitimate sons were entitled to shares equal to those of legitimate sons, provided they had been acknowledged by the father. This provision differed the most from canon law; as the Iorwerth text puts it:
Dadannudd is a son's claim to land which previously belonged to his father. A landowner's right to convey land was restricted; it was only allowed under certain circumstances with the consent of his kindred and coheirs ( laudatio parentum). With the consent of the lord and the kindred, the landowner could use the living gage ( prid). The land would be made over to a gagee ( pridwr) for a period of four years, and if the land had not been redeemed by the gagor (owner) or his heirs at the end of the four years, the gage could then be renewed for additional four-year periods. After three renewals (or 16 years total), the land passed permanently to the gagee.T. Jones Pierce Medieval Welsh society p. 384
The confusion of the 11th century and the use of the Saxon loanword edling for the heir also seem to have clouded the issue. By law, the principal homestead (and presumably the realm) were to go to the king's eldest son, so long as this potential successor was not damaged in any limb, blind, deaf, or mentally retarded,Owen, p. 687. and of sufficient age. If the eldest son were ineligible for whatever reason, his brothers, uncles, and first and second cousins were all considered legitimate substitutes. Likewise, even when the eldest son did inherit, other descendants of his great-grandfather were considered legitimate rulers and not usurpers if they were able to wrest control away from him.
Finally, although surviving editions of Hywel's law explicitly forbid inheritance by or through female members of the royal family, Hywel's line itself derived from lords of Man who had (allegedly) married into the dynasties of Gwynedd and Powys and there are numerous examples through the 11th century of kings asserting their legitimacy on account of royal mothers, despite surviving underage representatives of the male line of succession.
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.
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 eyewitnesses 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.R.R. Davies The administration of law in medieval Wales: the role of the Ynad Cwmwd (Judex Patriae) in Charles-Edwards, Owen and Walters Lawyers and laymen p.267
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:
It was possible to appeal against a judge's decision, and the appellant 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.Charles-Edwards, Owen and Walters Lawyers and laymen p.339
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.Daniel Huws, Leges Howelda at Canterbury in The National Library of Wales Journal, XIX (1976), pp. 340–4 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".Quoted in Williams Recovery, reorientation and reformation pp. 35–6 Nearly two hundred years after Welsh law ceased to be used for criminal cases, the poet Dafydd ab Edmwnd (floruit 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".Parry, Thomas. ed. The Oxford book of Welsh verse. Oxford University Press, 1962. pp. 138–141
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.Davies Conquest, coexistence and change p.368 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.
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.
There have been multiple calls from both Welsh academics and politicians however for a Wales justice system.
|
|
