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The care of the laws belonged not to kings or princes, but to lawyers. It was for them to explain, and in explaining to develope the ancient law. In this there is nothing strange. The really strange thing is that during the period of English history which ends with the Conquest, we hear so very little of “ law-men,” so very much of real legislation.* For this we have to thank the energetic line of West-Saxon Kings and very possibly the influence of the Frank Empire. In Wales, where no great family succeeded in gaining a permanent, unquestioned, irresistible supremacy, there arose a special class of men learned in the laws, a class quite comparable to that of the German and Scandinavian “ law-men,” and the Irish “ Brehons,” and it is not unworthy of note that the one great Welsh law-giving King, Howel the Good, whose code was universally regarded as the very core of \Velshlaw, was himself a tributary of the English ./Ethelstan.
From what has been said it will be easily understood that the materials provided by the Ancient Laws and Institutes of Wales should only be used with the greatest caution. They are of very uncertain date; even the dates of the MSS. (and they are numerous) from whence they are taken have not yet been assigned with much accuracy. Again, though in the main they are far more consistent than we might expect, it is sometimes very difficult, or perhaps impossible to harmonise them even when they touch on matters of considerable importance. Clearly the first qualification which should be required of any one who Would deal with these materials thoroughly and scientifically must be a very competent knowledge of the Welsh language, its dialects and its history, and the second must be a large acquaintance with other old systems of law, for ityis at once apparent that this mass of Welsh rules has many and strong resemblances to other masses of ancient law, and in such other masses a sound criticism would find many of its best weapons. But even to one who boasts no such equipment, and who is wholly dependent on Mr. Owen's English version, there are certain things fairly clear and very interesting in these documents, and such an one now submits to his readers a brief account of what seems to him a very noticeable part of the system described in the Welsh laws.*
' Curiously enough one of the few passages in the Anglo-Saxon authorities which mentions “ law-men" is a provision for the administration of justice between Englishmen and Welshmen, the “ ordinance respecting the Dunsetas."
‘A fact which at once strikes us is that very great importance is attached to nationality. The pure-blooded Welshman has many privileges which he does not share with any foreigner, or with any one who is tainted by foreign blood. We constantly read of aliens and foreigners, and seemingly a considerably part of the population was, or was deemed to be, of alien descent. But with scarce an exception the alien is a villein ; not indeed a slave or bondsman, for below these alien villeins there is a yet lower class of real slaves, whom the Welsh lawyers constantly compare to the beasts that perish and lie unavenged ; but still the alien is unfree, is a villein, and the very word villein has made its way into Wales. In all respects he is on a lower level than the pure-blooded Welshman. How strict are the notions entertained concerning purity of blood may be seen from the provisions which permit the alien, whose ancestors have for several generations been settled in Wales, to become a. true Welshman. According indeed to one authority, but one which seems open to suspicion or worse, no less than nine generations are requisite to purge out the stain of foreign blood, and thus a period of nearly three centuries may elapse before a true Welshman is born of a foreign stock.* This is probably exaggeration, but more trustworthy authorities agree that long settlement in Wales is necessary, the number of generations requisite being apparently three.i
* I cite the three Codes as Ven., Dim., and Gwent., respectively by Book,
Chapter and Section, and the remaining tracts as Bk. IV., V., etc., here again giving Chapter and Section.
On hardly any point is there so striking a difference between the Welsh laws and the earliest English laws that have come down to us. In England, to all appearance, law very rapidly became territorial, and he was a West-Saxon who lived in Wessex. It may well be that for some time afterthe Teutonic invasion, Jutes, Angles and Saxons thought of their laws as the laws of their race, not of their territory. In Ine's code the Welshman, even when no slave, is clearly not on a level with the VVest-Saxon 1' He has a smaller wer, probably an altogether inferior status. But Ine’s code belongs to the seventh century, and there must have been many Welshmen in his dominions who had become his subjects not by birth but by conquest. No such distinction appears in our next code, that of Alfred, and from that time onwards the laws hardly mention the Wealh,§ though a large portion of the population of the south-western counties must have been of British descent, and must have spoken a Celtic tongue. So again after the Danish invasions, “ the Danes’ law” seems to have rapidly become territorial, and indeed the phrase became the name of a territory.“ No
’ Bk. XIII. 2,§ 66, 67. This thirteenth book seems to me the least trustworthy of all the authorities, and such I understand is the opinion of better judges.
1- Bk., V., 2, § r23, 126, :44.
I Ine 23, 24, 32, 33, 4.6. (I cite the Anglo-Saxon Laws from the second edition of Schmid's Gesetze.)
§ /Ethelstan, VI., 6. Ethelred, II., 6.
|| It still, I imagine, gives its name to the Hundred of Dacorum in the County of Hertford. This means the Danes’ hundred, for our ancestors thought it classical to call the Danes, Dari. This hundred perhaps got its name as being the only district south-west of the Watling Street, which was under the Danes’ law. That law we are told extended to the Watling Street and eight miles further. This would nearly include the hundred in question. (Leger Edwardi Coufussoris. 30 (27).)
where do we hear anything of the archaic system of “ personal law," as it is called, or of tribal or national law as we might better call it, which prevailed on the Continent and which allowed the Frank to carry about with him his Salic or Ripuarian law into Saxony or into Lombardy or wherever he might go. Probably what distinguished England from the Continent was this: that on the mainland there was one system of law utterly different from the customs of any of the German tribes, the Roman law. The Church was deeply interested in its preservation, and the clergy secured from their conquerors and converts the privilege of retaining their old law. This made a nucleus, round which an elaborate system of “personal law” arose, each man keeping wherever he might be the law to which he was born. In England, Roman institutions perished, and the British Church gained no hold over the invaders. But be the explanation what it may, the Danes’ law rapidly became the law, not of men of Scandinavian descent, but of Eastern and Northern England. Even the Norman Conquest, deeply as it affected the history of our law, placed no new nation alongside of the English. The privileges which belonged to Normans as Normans were very few. At last we find the Common Law of England so utterly careless concerning purity of blood that it holds every man an Englishman if born in the English king’s dominions, an alien if born elsewhere. Very different is this from the Welsh law with its excessive care for pure Welsh nationality.
To refer this difference to an ultimate difference in national character would be rather easy than satisfying. Before so doing we should remember that the English conquest of \Vestern Britain must have done much to make the Welsh law the law of a race not of a territory, and to keep alive the memory of pure Cymric descent. The Welsh had an outstanding claim to the whole of Britain, and to no
narrower territory could their law attach itself. In the struggle against English invasion they became an exclusive people.
The same causes which made for the preservation of a national as opposed to a territorial ideal of the state, must have aided the retention in Wales, down to the very last days of Welsh law, of an organisation of society for legal purposes by kindreds and families. No one will now be surprised to find traces of a time when the kindred or clan and not the individual was the true unit of the legal system. But in Wales, so long as Welsh lawyers continued to write about Welsh law, that time had not wholly passed away. The kindred or clan was, to use a phrase but little too technical, a corporation having rights and duties in its corporate capacity, not indeed a corporation created by by law, but one which the law must recognise. The constitution of these kindreds and their corporate rights and duties are a matter well deserving of observation, and we may be pardoned for speaking of them at some length.
The kindred (cenedl) must have normally been a body of considerable size, for fifty of its full grown male members were often required to act in common, and in some cases even three hundred. It is a body of kinsmen tracing their descent from a common ancestor, and there are some signs of a theory that all these kinsmen are distant from the common ancestor by at least three generations. A family of aliens is not a kindred until at least a certain number (some say nine) generations have passed away. One curious passage suggests that, according to the current notion, this is the way in which all kindreds have been formed.* After aliens have remained in the country for the ‘due time a Welshman is born, and he becomes the head of the kindred, and he is not in law called the son of his father being rather his father’s father in the 1aw.+