Front Page Titles (by Subject) THE LAWS OF WALES.—THE KINDRED AND THE BLOOD FEUD 1 . - The Collected Papers of Frederic William Maitland, vol. 1
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THE LAWS OF WALES.—THE KINDRED AND THE BLOOD FEUD 1 . - Frederic William Maitland, The Collected Papers of Frederic William Maitland, vol. 1 
The Collected Papers of Frederic William Maitland, ed. H.A.L. Fisher (Cambridge University Press, 1911). 3 Vols. Vol. 1.
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THE LAWS OF WALES.—THE KINDRED AND THE BLOOD FEUD1 .
The Ancient Laws and Institutes of Wales, of which Mr Aneurin Owen now many years ago published an edition and an English translation for the Record Commissioners2 have hardly hitherto received, even in the Principality, the attention which is their due. Englishmen having at one time somewhat too greedily devoured Welsh myths are now wont to mistrust any information contained in a Welsh document, and thus an indiscriminating credulity has given birth to an indiscriminating scepticism. There seems really very little ground for doubt that the bulk of Mr Owen’s three codes, Venedotian, Dimetian, and Gwentian, was at one time law in Wales, or at least was thought to be law. This qualification we add because it is very apparent that a large part of these masses of rules is neither law made by any “sovereign one or many” (to use Austin’s phrase), nor yet “judge-made” law, nor yet again a mere record of popular customs. It is lawyer-made law, glossators’ law, text-writers’ law. That the kernel of the mass is a real old code compiled by Howel the Good about the year 928 is more than probable1 . But our documents do not profess to give us the code, the whole code, and nothing but the code. By comparing the several versions which Mr Owen assigns to Gwynedd (North Wales), Dyfed (South West Wales), and Gwent (Monmouth), we soon come to the conclusion that they have been made at different times, in different parts of the country, and that the makers thereof have held themselves free to gloss, to rearrange, and to introduce new matter. The relation of these versions to the real ancient code is probably much the same as that of the compilations which bear the names of Edward the Confessor, William the Conqueror, and Henry the First, to the codes and statutes of Cnut and his West-Saxon predecessors. Between the Norman Conquest and the reign of Henry the Second, there lies a time in which it must have seemed likely that the future of the law of England was committed to glossators and textwriters. This period was brought to a close by Henry’s vigorous legislation. But in Wales there was no one to issue assises or constitutions. Much as the later Welsh lawyers must have added to their ancient code, they hardly ever refer to any subsequent legislation. Only fitfully, now and again, were the Welsh people united under one chieftain, and then for the purpose of war, while even in each separate kingdom or principality the king or prince can have had but small legislative power. 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 legislation1 . 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 Welsh law, was himself a tributary of the English Æthelstan.
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 it is 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 laws1 .
A fact which at once strikes us is that very great importance is attached to nationality. The pureblooded 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 considerable 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 stock1 . This is probably exaggeration, but more trustworthy authorities agree that long settlement in Wales is necessary, the number of generations requisite being apparently three2 .
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 after the 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 West-Saxon3 . 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 Wealh1 , 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 territory2 . Nowhere do we hear anything of the strange 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 Western 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 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 formed1 . 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 law2 .
The relationship between the members of a kindred was normally a real blood relationship, but we read of nine methods “by which strangers can become relations3 .” Each of these consists of some great service done to a kindred, espousing its cause in a blood feud, or the like, and the benefactor thereby becomes a member of the clan which he has benefited. There are other passages which show that similar legal fictions were not unknown. The lord who takes by escheat becomes the son of the dead man1 , and as already said a man may be his own father’s father. But normally the bond of union was blood relationship, and that agnatic. The bond of kindred was closely connected with the possession of land, and though there is some slight conflict between our various authorities, it seems perfectly plain that according to the oldest law, and the law which prevailed in Gwynedd down to the time of Edward the First, no woman could in any case inherit land2 . In three quite exceptional cases she could transmit to her sons a right to inherit her father’s land along with her brothers. It is constantly assumed that it is the duty of a woman’s kinsmen to give her in marriage where her sons may obtain a paternal inheritance. If they fail in this duty her sons will inherit through their mother. If a Welshwoman be given in marriage to an alien, if she be given as a hostage into a foreign land and there marry, if she suffer rape by an alien, her sons will inherit with their maternal uncles and be members of their mother’s kin3 . These (with one other to be hereafter mentioned) are the exceptional cases, and in all others it is through males and only through males that relationship is traced.
A man therefore belongs not to many kindreds, but to one kindred, namely, that to which his father belongs. But it is a very noticeable fact that marriage did not in Wales, any more than in England, take a woman out of her own kindred and transfer her to that of the husband. Here we can only notice this fact, hoping to return thereto at a more convenient season. However, plain it is that in Wales, as in England, the wife remained a member of her own kindred1 . But though, as already said, a child normally belongs to his father’s kin, there are exceptions to this rule. Owing to the somewhat loose notions of marriage and legitimacy which prevailed in Wales, it was not always easy to determine who a child’s father was. Apparently the son even of a common prostitute2 is not a child without a father. If the mother can affiliate him he becomes a member of his father’s clan. If the attempt to affiliate him be unsuccessful (and no more than one attempt is ever allowed), he becomes a member, and seemingly a perfectly legitimate member of his mother’s clan. For him, as for the most lawfully begotten of children, a wergild (or galanas) is payable, and there being no father’s kindred a greater share than usual is paid to the maternal relatives3 . If the man on whom a child is fathered be living, he may free himself by solemn oath4 . If he be dead then the matter rests with his kindred. Here we see the clan and its chieftain in full activity and get a glimpse of the organisation. The chief with six of the clan may go to the church and there by oath repudiate the child, and seven other members must swear that the oath is pure. If there be no chief, the men of Gwynedd require the oaths of twenty-one kinsmen, while in Powys and Dyfed there must be fifty swearers. Provision, however, is made to prevent the denial being given by those whose interest conflicts with their duty. Those with whom the child would be entitled to share the paternal inheritance are disqualified to repudiate him. Until solemnly repudiated the child is “a son by sufferance,’ and the clan must pay if he commits manslaughter, but have no claim if he be slain, having as it were the burden but not the benefit of being related to him1 . A solemn and impressive form of adoption is provided. The chief and six of the best men may acknowledge the child. The chief takes the child’s hands within his own and kisses it, then places its hands within those of the oldest of the other men, who kisses it, “and so from hand to hand until the last man.” If there be no chief, the ceremony is performed by twenty-one (according to others, fifty) of the clan’s best men2 .
Over the clan there presides a chieftain (pencenedl). Concerning the title by which he holds his power, the more trustworthy sources give us but little and that negative information. It is not a hereditary title. “A son is not to be chief of kindred after the father in succession, for chief of kindredship is during life1 .” From this we may infer that though not deemed hereditary, such it was tending to become; and this is probable, for from the same source we learn that the nobility of the chief extended to the members of his family, their galanas, or as the English would have said wer, being greater than that of the mere nonnoble free man2 . Less trustworthy authorities are richer in information. “A chief of kindred is to be the oldest efficient man in the kindred to the ninth descent3 .” How far this requirement was actually fulfilled in practice we cannot say, nor is it impossible that age was reckoned in some artificial manner which represented the members of an older line as themselves older than members of younger branches, for by such means a transition may have been made to that hereditary transmission of the office against which the law expressly provides.
The chief’s position is one of honour and privilege. In the Welsh laws, as in other ancient systems, every man has his price, the price which must be paid for him in case he be slain. In Wales this price is called galanas, and like the wergild of the Teutonic nations, it fixes a man’s station in society4 . Now the galanas of the chief is according to the Venedotian Code, “nine score and nine kine once augmented5 .” Concerning the phrase “once augmented” we can only here say that it seems to mean that the sum named is to be increased by one-third of itself. The chief’s value therefore is 252 kine. He is thus ranked on a level with the highest of the king’s servants or officers of state, the steward, the chancellor, and the chief huntsman. The value of the mere Welsh free man according to the same system is 63 kine1 . In the other codes the difference between the chief and the free man is still greater, the life of the one being apparently nine times as valuable as that of the other2 . In short, no one is more honourable than the chief of a clan, save only the king, queen, heir apparent to the throne, and the chief of the royal household, for even the king has his price in Wales, as in England and in Scotland.
Many other payments are regulated by the amount of a man’s galanas, for instance, his saraad or honour price, the sum he receives if insult be done him, the ebediew, relief or heriot payable on his death, the amobyr or fine for leave to marry his daughter, and the cowyll or morning-gift and agweddi or dower to be provided by her husband. Thus his galanas fixes a man’s general status, just as in England many legal consequences depend on the amount of a man’s wer. Judging by this standard, the chief’s position is honourable and exalted. He enjoys other privileges and immunities. He receives galanas for the death of a kinsman, but does not pay3 . He is entitled to twenty four pence from every youth admitted to the kindred, and to twenty-four pence from every kinsman who places a woman under his protection1 . To slay him is among the gravest crimes2 . In all matters which concern the clan he takes the lead, and if in “counselling” a kinsman he has recourse to a blow, that blow may not be redressed3 .
Thus much we have on good authority. The Triads of Dynwal, to which we refer with very much less confidence, ascribe to the chieftain vast political and constitutional importance. For instance, it is by a chief of kindred that an assembly may be convoked for the deposition of an unjust king4 . These Triads bring out very strongly the theory, doubtless the old traditional theory, that the Welsh nation is constituted, not of individuals, but of kindreds each under its own chief. But they are poetic and vague, and probably in their present form of little value as evidence of fact, though of much value as evidence of ideals and aspirations. They leave the impression that the kindred for many purposes, both civil and constitutional, acts as a body, being in some sort represented by its chief. Also the chief has large though rather indefinite powers in the internal government of the kindred and the direction of its affairs. “Every one of the kindred is to be a man and a kin to him, and his word is paramount to the word of every one of the kindred5 .” “Three things, if possessed by a man, make him fit to be a chief of kindred; that he should speak on behalf of his kin and be listened to; that he should fight on behalf of his kin and be feared; and that he should be security on behalf of his kin and be accepted1 .” “It is the duty of every man of the kindred to listen to him, and for him to listen to his man2 .” We are told more definitely that he is entitled to maintenance from the ploughs of the kindred3 . He also has the privilege of imprisonment, whatever that may mean4 . He is assisted by a council of seven elders, also by a “representative” of the kindred, and by one who bears the ominous title of “the avenger5 .” The avenger punishes evil doers and leads the kindred to battle. This must imply important duties, for it is as a corporation capable of making private war that the kindred retains its chief importance in Welsh law. The “representative” must we are told be a learned man. It is for him to act as the chief’s deputy, and we must regard him as the kindred’s peace-maker, negotiator, and man of business. To the existence of the council of seven elders, the avenger, and the representative there is testimony in the “codes,” but hardly anything is there said of their qualifications, rights, or duties6 .
Though there is some evidence that the kindred as a corporate body is still capable of possessing property, it is chiefly in the sphere of criminal law, or what we should consider the sphere of criminal law, that it finds scope for its corporate activity. The whole subject of Welsh criminal law is well deserving of examination, but here it is only necessary to premise a brief explanation, and one which will hardly surprise those who are acquainted with other ancient systems of law. The Welsh laws in some cases inflict real punishments. Most frequently these are fines or mulcts payable to the king or lord, but mutilation and death are occasionally though rarely denounced. There is a real penal or criminal law. But this does not extend to what we are wont to think the gravest of all crimes. It does not extend to homicide. Neither manslaughter nor what we call murder was, strictly speaking, a crime at all. It was a legal justification for a blood feud, which feud might be composed by the payment of the slain man’s worth or galanas, a payment of just the same nature as the wergild of our own old laws. Criminal or penal law, the law which does not extort reparation but punishes, seems to have followed the same course of development in Wales as in England. It is seriously doubtful whether at any time before the Norman conquest homicide, unless it was accompanied by some foul and diabolic dealing which made it morth, was punished in this country by anything beyond a pecuniary mulct, while it is certain that the punishment of death had long been freely applied in cases of theft and even of petty theft1 . There is some discrepancy between the various Welsh authorities as to the limits within which the blood feud is permissible. According to one version of the Venedotian code the slain man’s kindred may only revenge his death on the person of the slayer2 . Apparently, therefore, in North Wales that step towards the abolition of the feud had been taken which in England was taken by King Edmund. In this case we are able to test the value of the Welsh authorities by appeal to a very trustworthy source. Edward the First issued a commission to examine witnesses from North Wales touching their laws1 , and one of these gave evidence of just such a limitation of the blood feud as marks the Venedotian code and ascribed it to David ap Llywelyn, apparently the prince of that name who died in 12462 . In the other codes there is certainly no such limitation. An act of homicide if not duly paid for within the appointed time is still a signal for private war of kindred against kindred. That the revenge was not originally restricted to the person of the slayer should be clearly understood, for only thus can we understand the composition for homicide whether it be called wergild or galanas. The slayer’s kindred must pay the money, not because they are bound to help a kinsman out of a difficulty, but because they themselves and every of them are liable to the revenge of the slain man’s clan. With the money, wergild or galanas, they purchase not their relatives’ peace, but their own. On the payment of the galanas within due time, what may fairly be called a treaty of peace is concluded. Three hundred men of the offended kindred swear that the slayer is forgiven, and everlasting concord and perpetual amnesty are established1 .
Now first we must notice that though a man properly belongs to one kindred only, namely, that of his father, he is by no means a stranger to his mother’s clan. If he slay or be slain, not only his paternal but also his maternal kin are involved in the feud. Seemingly it is thought that his mother’s kin have only one-third share in him. They pay or receive a smaller part of the galanas, the greater part being paid or received by the father’s kinsfolk. It is well worthy of note, that of this rule which is firmly established in Wales, we have evidence from England also2 . Thus there are four kindreds involved in each feud, and apparently the maternal kin on the one side is at war with the maternal on the other, the paternal with the paternal. At least, paternal kin pay to paternal, maternal to maternal; and paternal swear peace to paternal, maternal to maternal.
When we pass to more minute rules, we find that these were evidently the subject of many differences of opinion. We are told what “some say” and “others hold,” and one Welsh lawyer frankly confesses that “the sharing of galanas “is one of “the three complexities of the law1 .” However, even on this dangerous ground, we may take a few steps.
In the first place we must distinguish from the galanas another payment, namely, the saraad. Whenever a person is subjected to any injury or disgrace, saraad is done to him, and must be paid for. Just as every man has a certain price which must be paid if he be slain, so he has a certain saraad or, as we may term it, “honour price,” which must be paid if he be insulted2 . The latter price varies with the former. Thus, if a man’s galanas be three score and three kine, his saraad is three kine and three score pence, the one being determined by the other. Similar instances of prices for minor injuries, dependent on the amount of the injured person’s wergild are to be found in the old English laws. Now, if a man be slain, saraad is done him, and must be paid for. But saraad and galanas spring from different notions. The galanas is payable (as in the English wer) for very much less than murder. It is payable seemingly for every voluntary homicide; it is payable even in cases where a modern coroner’s jury would be inclined to refer death to misadventure, or to the Act of God. Saraad, on the other hand, is payable only for injury wilfully inflicted. The difference is brought out thus: If an idiot slay a man, the idiot’s kindred must pay galanas, but they need not pay saraad3 , and such also is the case where the slayer is an infant1 . To occasion saraad there must be bad will; but nothing of the sort is necessary to give rise to galanas. But ordinarily, where there is homicide, both payments must be made. Now saraad is paid both by and to a narrower class of relations than that which pays and receives galanas. One-third is paid to the slain man’s widow if he leaves one and the rest is divided among his near relations. Authorities differ as to how near the relations must be who claim the saraad. One names only father, mother, brothers and sisters2 (whom we may call the household); another names brothers, first cousins and second cousins3 (whom, for reasons which cannot be here given, we may call the inheriting family), while others, perhaps describing the practice of a later date, after deducting the widow’s third mix the rest of the saraad with the galanas4 . So again the saraad is paid by a narrower circle of relations than those who pay galanas. Generally, indeed, the books speak as if the offender pays the whole saraad, but it seems that at least in case of his insolvency his kinsmen to the distance of second cousins are liable5 .
Now here again is a curious likeness to old English law. The payment of the bulk of the wergild was preceded in England by the payment of a sum to the nearest relatives of the slain. This was the heals-fang; in the Latin versions “apprehensio colli,” the taking of the neck. “Heals-fang belongs to the children, brothers, and paternal uncles; that money belongs to no kinsman, except to those within the joint (binnan cneowe)1 .” Our older commentators supposed that heals-fang had something to do with the pillory. But Dr Schmid has ingeniously suggested that it is connected with a mode of representing the degrees of relationship by reference to the various limbs of the human body which was well known among the Germans2 . It is the portion taken by those who “stand in the neck,” those who are within the joint (binnan cneowe); more distant relations “elbow cousins,” “nail cousins,” and the like have no share. However, there are many differences between the heals-fang and the saraad, and we by no means intend to suggest that the resemblance between Welsh and English law is due to any survival of British customs in England, or to any influence of English upon Welsh law.
The saraad being paid, it remains to pay the galanas, which is of considerably greater amount and importance. Some light on its distribution is thrown by the strange number which the Welsh took as the unit of galanas. When these laws were written, the use of money, at least as a means of reckoning, had become common; but the galanas, an old traditional payment, is always expressed in terms of cattle. The unit of galanas, if we may so speak, the worth of a mere free man, is “three score and three kine,” more noble persons being valued at “six score and six,” or “nine score and nine.” Now the number 63 is not only the product of two very sacred numbers, 7 and 9, but it is also the sum of the geometrical series 1+2+4 to six places. Six persons or classes of persons can pay 63 cows, the first person or class paying one cow, the second twice as much, the third twice as much again, and so forth. Apparently it was this property of the number which gave it a place in the galanas system.
So far as we can see the burden of paying galanas was borne thus1 :—Divide the whole sum by three; one of the three parts falls on the slayer and his nearest relations, whom we will call his household. Of this the slayer himself pays one-third, his father and mother one-third, his brothers and sisters one-third, the father paying twice as much as the mother, and a brother twice as much as a sister. The remaining twothirds of the whole sum are again divided by three, two-thirds falling on the paternal, one-third on the maternal kindred. Of each kindred, six classes of relations pay, the first class paying twice as much as the second, and so on. It will be seen that if the total sum be sixty-three, the class which pays least must provide the third of a cow; while if the full galanas be “nine score and nine,” the class which pays least is liable for just one cow.
The mode of computing the degrees of relationship seems to be “parentelic,” that is to say, my father and all his issue constitute a class or parentela, but these, since they take the household’s third, are not one of the six. The first of the six consists of my grandfather and his issue, other than my father and his issue; the second consists of my great-grandfather and his issue, other than my grandfather and his issue. Thus a sixth cousin is in the last class which pays or receives galanas. A mode of reckoning somewhat similar to this was apparently prevalent in England also1 , and indeed is still involved in our law of inheritance, which exhausts my father’s issue before it passes to the next parentela.2 .
The right to receive galanas is governed by much the same rules. There are, however, differences. In the first place, the lord at the time of which these laws speak takes one-third of the whole for his trouble in exacting payment. Then, again, the slain man of course receives nothing, and, consequently, the house-hold’s share is somewhat differently distributed. But the most curious point is that a woman pays but does not receive galanas. The notion seems to be that she pays as representing her infant, or yet unborn children; for a woman who is past child-bearing, or will swear that she will never have children, is exempt, and if she have children of full age she is absolved by their payment3 . In cases where she pays she is only liable for one-half of a man’s share1 .
Apparently each class of relatives is liable to pay or entitled to receive the whole sum allotted to it, however few or many be the members of the class. Beyond the relatives bound to pay galanas stand yet remoter kinsmen who, if the sum cannot be otherwise raised, are bound to contribute a “spear penny,” and can only escape by swearing that they are of no kin to the slayer2 . But all these rules are probably only rules apportioning the burden as between various members of the kindred. If the whole sum be not paid then there is war between the kindreds, even though certain members of the offending clan have been ready with their contribution—such at least must have been the old rule, though, doubtless, it was mitigated in course of time.
We have already noticed the resemblance to English law in the distribution of the burden and benefit of the composition between paternal and maternal kin in the proportion of two to one. A division of the wer into three parts, one of which is paid by the household, one by the father’s and one by the mother’s kin, is found in the Lex Salica3 . There is, however, little to be gathered from the so-called Leges Barbarorum concerning the mode of distributing the wer, and not much more to be gathered from the Anglo-Saxon authorities. Owing to the power in one case of the Frank Empire, in the other of the West Saxon house, the old wer-gild system rapidly gave way before a system of punishment, and it is to the extreme north of Europe that we must look for any body of rules so complicated as the Welsh. The Scandinavian lawmen seem to have delighted as did the Welsh in elaborating the scheme, and anyone who will turn to Wilda’s Strafrecht der Germanen will find a parallel for nearly every Welsh rule in some authority Icelandic, Norwegian, Swedish or Danish1 For instance, in the East Gothlanders’ law, as in the English, as in the Welsh, the paternal kindred pay twice as much as the maternal, while (and this is very remarkable) the West Gothlanders’ law has the rule that six classes of relations pay, each paying twice as much as the one which is one degree more distant2 .
It is plain that since every manslaughter involved four kindreds in the feud, some nice questions might arise from the mutual interference of family obligations. A man might be called on to support his mother’s kin in a feud against his father’s kin. Such a case is actually provided for, and in the strangest fashion. If a man slay another of his own kindred he has to pay to the kindred the galanas of the slain, and in this case he alone is liable, for the kindred cannot pay to itself3 . He also forfeits his patrimony, and doubtless the law affords him but little protection against the justice more or less irregular of a domestic forum; but law fully he may not be slain “since the living kin is not killed for the sake of the dead kin1 .” Now if a man in avenging the death of a maternal relation kill one of his own kindred and thereby forfeit his patrimony, he is to be allowed an inheritance from his maternal grandfather2 . Perhaps there is no more striking example of the queer mixture of barbarism and logic which characterises these Welsh laws. One of the few exceptional cases in which a woman can transmit inheritance to her son is where that son is a murderer.
Even long after the English had finally mastered Wales, and when there could no longer be any talk of the blood feud as a legal mode of redress, the payment and receipt of galanas continued. In the same way in England, long after Edmund’s legislation and long after the Norman conquest, we hear of men paying and receiving the wer-gild. Among the Welsh authorities there is a book of precedents for pleaders, seemingly of as late date as the reign of Edward the Fourth. This contains “a plaint of galanas.” “This is the plaint of John, son of Madog, &c., on account of there being two parts on behalf of the father, and the third on behalf of the mother of John, son of David, to whom came Maredudd, son of Phylip, and caused death to that said John.” It then states with good and sufficient pleader’s verbiage how Maredudd dealt with the said John, making “an unjust and public attack through wrath and anger, and animosity, and surreption, and disrespect, to the lord, and to the dominion, and to the kindred.” It demands the payment of three marks, the worth of a free privileged uchelwr (gentleman). It is addressed to “the governors,” for “the law has not apportioned to the lord a share in the worth of anyone, but by causing the inquiring party [the plaintiff] to obtain the whole1 .”
One more testimony to the endurance of the blood feud shall be given, and this from an unimpeachable source, namely, the English Statute Book. First we must notice that if a man be charged with slaying another and wish to deny the accusation, he can do so. The Welsh law, like other old systems, recognizes compurgation as the usual mode of trial, or rather of defence, in criminal cases. The number of compurgators required is very large, far larger than any of which we hear in England or on the Continent. In the case of homicide, the number of men who help the accused in “making his law” is no less than three hundred, and they must be men of his kindred. “The oaths of three hundred men of a kindred are required to deny murder, blood, and wound, and the killing of a person,” and therefore, the law adds, the same number of oaths is required when galanas is paid and peace thereupon sworn. Now a Statute of the year 1413 (I Henry V., c. 5), refers to the then late rebellion in Wales and complains that the Welshmen are still taking revenge for the deaths of their kinsmen against the king’s faithful lieges, and some of such lieges they keep in prison until they have paid ransom, or until they have purged themselves of the death of the said rebels so slain as aforesaid, “par un assach1 selonc la custume de Galles, cest a dire par le serement de ccc hommes.” The fact is that the Welshmen had been acting according to their notions of law and requiring three hundred compurgators. This is not the only instance in which our Statute Book bears out the testimony of the Welsh laws, but here, at least for a time, we must take leave of the Kindred and the Blood Feud.
Law Magazine and Review, August, 1881.
Ancient Laws and Institutes of Wales, 1841. I use the octavo edition, which I believe agrees in all points with the folio.
Haddan and Stubbs, Councils and Ecclesiastical Documents, vol. I., p. 211.
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.”
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.
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.
Bk. V. 2, § 123, 126, 144.
Ine 23, 24, 32, 33, 46. (I cite the Anglo-Saxon Laws from the second edition of Schmid’s Gesetze.)
Æthelstan, VI. 6. Æthelred, 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, Daci. 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. (Leges Edwards Confessoris. 30 (27).)
Bk. V. 2, § 144.
Bk. XIII. 2, § 66, 67.
Bk. X. 2.
E.g., Ven. II. 6, § 28.
The Bishop and Chapter of St Asaph, stating their grievances against Llywelyn (a.d. 1276), say, “Mulieribus et si alii heredes deficiant, jus successionis hereditarie immo denegat. Set hoc consuetudo patrie est.” This admission seems conclusive. See also the Statute of Rhuddlan, and Ven. II. 15, § I.
Ven. II. 15, § 1–4. The same rules with slight variations occur in many other passages.
Legg. Hen. Primi 70, § 12, and Schmid, Anhang VI. § 7.
“A woman of bush and brake,” Gwent. II. 39, § 40.
Ven. II. 31, § 7, 8.
ibid., § 4.
Bk. V. I, § 7. Bk. V. 2, § 82.
Ven. II. 31. Dim. II. 8, § 30. Gwent. II. 39, § 40. Bk. X. 7, § 4. Bk. XIII. 2, § 120.
Gwent. II. 40, § 10.
Gwent. II. 5, § 11. Dim. II. 17, § 23.
Bk. XIII. 2, § 88.
The same word galnes or galnys occurs in the old Scotch Regiam Majestatem. (Acts of Parliament of Scotland, pp. 273, 276, 300.) Seemingly it means murder, slaughter.
Ven. III. I, § 27.
Ven. III. I, § 31.
Dim. II. 17, § 21, 27. Gwent. II. 5, § 9, 15.
Gwent. II. 39, § 14.
Ven. II. 19, § 1, 2.
Dim. II. 8, § 8.
Dim. II. 8, § 20.
Bk. XIII. 2, § 62.
ibid., § 165.
Bk. XIII. 2, § 163.
ibid., § 88.
ibid., § 131.
ibid., § 133.
ibid., § 88, 162.
Gwent. II. 39, § 38, 55. Dim. II. 8, § 8.
As to what constituted Morth, see Schmid, Gesetze, Glossar.
“No one is to be killed on account of another but a murderer . . . For if the kindred disown the murderer, there is no claim upon them.” Ven. III. I, note, § 19. Compare Laws of Edmund.
Printed by Wotton in an Appendix to Leges Wallicæ.
The passage is curious:—“Ithel ab Philippi juratus dicit idem in omnibus cum Kenewrek prejurato, adjiciens quod Princeps potest pro voluntate sua leges corrigere et in melius reformare, exemplificando de David ab Lewel. avo Principis nunc, qui delevit per se et consilium suum le Glanas per totam Northwalliam. Videbatur sibi et consilio suo quod culpa suos debeat tenere auctores delinquentes, et non alios, qui nichil deliquerint, quod aliter fieri consuebat colligendo Glanas, etc.” (Wotton, p. 524). Apparently Edward’s commissioners did not understand this, for some one has written in the margin of the Roll, “Inquirendum quid sit Lex Glanas. Examinandum de emend. Legis.” We, however, have no difficulty in catching the drift of the remark. According to Ithel, David freed the kin from the feud because he thought it unjust that the innocent should suffer for the guilty, “quod fieri consuebat.”
Ven. III. I, § 16.
Legg. Henr. Prim. 75, § 8, 9, 10. Supported by Alfred, 27.
Bk. X. 7, § 27.
Saraad seemingly means disgrace. I borrow the phrase “honour price” from the translation of the Irish laws.
Bk. IV. I, § 2, 4.
Bk. VI. I, § 17.
Dim. II. I, § 14, 16. (In the last of these passages saraad in the English version seems a mistake for galanas.)
Ven. III. I, § 19.
ibid., note, § 22.
Gwent. II. 8, § 10. Ven. III. I, § 19.
Schmid, Anhang VII. (In the Record edition this is printed at the end of the laws of Edward and Guthrum.)
Schmid, Glossar. Heals-fang. Grimm, Deutsche Rechts Alterthumer, pp. 468—470.
The passages most in point are, Ven. III. I, and the version in the notes to that chapter, Dim. II. I, Gwent. II. 8, Bk. IV. 3, Bk. X. 3. The account in the text is compiled from these, and is not exactly borne out by any one of them. The discrepancies, however, seem due rather to imperfections of statement than to any difference of principle.
Schmid, Glossar., Cneôw.
But there are many difficulties about the Welsh reckoning which I cannot pretend to have solved. Vent. II. I, § 12. Dim. II. I, § 17–29. Gwent. II. 8, § 1–7. Bk. IV. 3. It is, however, much more intelligible than the Irish.
Ven. III. I, § 21—23. Ven. II. I, § 64.
Ven. II. I, § 64. Dim. II. I, § 16.
Ven. III. I, § 13.
Lex Sal.—De composit. homicid. (Hessel’s and Kern’s ed., 388–396).
W. E. Wilda, Strafrecht der Germanen, p. 372 f. It seems to me that many, if not most of the writer’s conclusions concerning the early stages in the development of criminal law, though derived entirely from Teutonic sources, hold good also as to Welsh law. It is much to be regretted that of early Scotch law we have but the merest fragments, and at present it is hardly safe for any but an Irish scholar to speak of Irish law.
Wilda, p. 379.
Gwent. II. 37, § 2.
Gwent. II. 39, § 54.
Dim. II. 8, § 21. Gwent. II. 39, § I. Bk. IX. 30, § I.
Bk. XII. II.
Asach. An oath, a troth. Pughe’s Welsh Dictionary.