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Book Reviews Page 402 | BOOK REVIEWS The Legal History of Wales (2nd Edition) Author: Thomas Glyn Watkin Publisher: University The privilege of my personal Welsh antecedents seems somehow of Wales Press to have qualified me to review this remarkable work. Professor Thomas Watkins is one of Wales’s most distinguished academics and lawyers. He is an ordained priest of the Church in Wales. He was legal assistant to the governing body of the Church in Wales from 1981 to 1988, with responsibility for drafting bilingual bills Reviewer: Professor and amendments to the church’s constitution. In 2007 he became Tony Lee Hon TEP First Welsh Legislative Counsel, the legal officer principally responsible for drafting the legislative program of the Welsh Assembly. My own brother knows him well, has read this book and discussed its purpose with the author. He says that the book is very much a product of the passion of the author for Welsh identity and unique future. The 2nd edition of this work includes a detailed description of the effects of the devolution of legislative capacity in the late 20th century. But as least as interesting as its coverage of the earliest ‘Celtic twilight’, then Roman, then post-conquest periods. For a thousand years after the departure of the Romans, the people of Wales, in whole or in part, lived according to their own laws, but those laws responded to the various influences of which they were subjected by reason of their geographical proximity to the economically far more important England. For three hundred years after the Union of England and Wales under the Tudors (1536), Wales had a distinct legal identity within which English law was dispensed by its own discrete law courts, the Great Sessions. Pressure to assimilate the two legal systems produced a legal culture that combines a readiness to assimilate with a jealous determination to preserve the best of one’s own. QUEENSLAND LEGAL YEARBOOK 2014 BOOK REVIEWS | Page 403 The Welsh had no writing before Roman times. Its traditions were oral but nevertheless highly sophisticated. They were accumulated and passed down meticulously from generation to generation. Nevertheless during the Roman period all free Englishmen were Roman citizens and enjoyed the protection of the Roman law. After the Romans left, the English retained and indeed clung to Roman law. Welsh legal custom remained oral and was practised west of the Roman influence. Other legal traditions developed after the Romans left, including the laws of the church and of Alfred the Great. All these affected the practice of Welsh legal customs. The Welsh traditions were not reduced to writing until the 10th century, nearly a thousand years after the disappearance of the Romans. Among those educated in the oral traditions of Wales were the druids. Caesar recognised the druids of Gaul as judges and advisers to the rulers. In Wales the role played by druids was undertaken by the court poet the bard teulu, who not only sang and recited for his patrons but also preserved the tribal and family genealogy in poetic or written form and was tutor to their children. The Welsh owned very little. A Welsh man rarely owned more than a harp, some proceeds of battle and a cauldron. The latter was inherited by his youngest son. There was also a practice of throwing possessions into a pit as an offering to the deity. There is archaeological evidence of some of these practices. But otherwise we know very little of early Welsh customary law. The second chapter, entitled ‘Wales in the Roman Empire’, emphasises the overwhelming achievement of Roman law throughout all parts amenable to Roman domination. Great importance was attached to the relationship of marriage and the position of the paterfamilias. Sons and daughters were incapable of owning property but the paterfamilias was liable for their wrongdoings. The great achievement of Roman law is its capacity to provide practical solutions to the problems and difficulties that confronted them. Chapter 3, entitled ‘The Sub Roman Period’, describes the period known as the Dark Ages extending from the withdrawal of the Romans to the promulgation of the laws of Hywel Dda in the 10th century. The final collapse of the Roman Empire in the west occurred in 476 when Odoacer deposed Romulus Augustus. Various codes of law were subsequently promulgated many of them incorporating Roman law precedents. Law ceased to be customary and became codified. They took the form of edicts. The former citizens of the western empire were loath to relinquish their Roman status particularly where their new rulers were heretics and not Catholics. In south west England there emerged tie role of the territorial bishopric. Monastic schools were created in many Welsh communities, and the Roman element of their curricula included poetry, grammar, rhetoric and arithmetic. Larger churches, called clas churches, supported colleges of priests. The maintenance of Roman roadways was a significant feature of this period and larger churches were often situate near a Roman road which facilitated the itinerant character of their ministry. Christianity in Wales during this period was thoroughly Roman in creed, origin, organisation and practice. Parish churches were built on former Roman sites, demonstrating continuity of occupation. Another feature of the continuing romanitas of this period was the attempt to confer distinguished Roman ancestry upon local leaders, both secular and religious. Governmental areas were likely to reflect the boundaries of earlier Roman governmental areas. Yet another remnant of Roman rule was QUEENSLAND LEGAL YEARBOOK 2014 Page 404 | BOOK REVIEWS the retention of the Latin language, which was common until at least the 5th century. The native British of that period were bilingual in Latin and Welsh and the Welsh referred to their country as Britannia, the Roman name. At this time, land in Wales was treated as belonging to the family and was inalienable and not disposable by will. This may be seen as a device to increase family wealth over time as was much later on the life tenancy followed by a remainder. The dominion of Christianity in post Roman Britain enabled bishops to attend overseas councils in Tours in 461, Vannes in 465, Orleans in 511 and Paris in 555. Contacts with non Roman jurisdictions such as Gaul, including Spain, resulted in the use of liturgy that was in part at least Gallic. Roman liturgical usage based on that of the church at Rome only spread to Wales at a later date, reaching Bangor in 768 and St David’s by 928. A further guiding factor in the development of an autochthonous Welsh culture was the Bible, which enjoined adherence in particular to the Old Testament as a requisite for kingship. This chapter concludes with the proposition that there is widespread evidence that the Romana-British remnant were loath to interact with the Anglo-Saxons, placing emphasis upon preserving their own culture and language, that is the Roman culture and the Latin language. CHAPTER 4: ‘THE AGE OF NATIVE PRINCES’ This detailed chapter describes the gradual development of various kingdoms and principalities in Wales and the creation of laws for each and all of them. In 825 the direct male line of the ruling house of Gwynedd ceased upon the death of Hywel ap Rhodri. He was succeeded by his nephew Mervyn who died in 844 and was succeeded by his eldest son Rhodri Mawr. Upon his death, four of his sons ruled his kingdom in some form of joint sovereignty. That is primogeniture had not been established. One of the sons established influence in the northern kingdom of Gwynedd and another, Cadell, in the southern kingdom of Dyfed, particularly after the death in 904 of the then King Llywarch ap Hyfaidd, whose daughter the son of Cadell married. Cadell was later known as Hywell Dda and it is during his reign from 904 to 949 that the extant native laws of Wales were reduced to writing. Hywel recognised the English King Athelstan in 927 and did homage to Alfred the Great. He signed official documents as a sub-regulus of the English king and is credited with having visited the Pope in Rome in 929, thus connecting Wales with the wider sovereignty of Europe. Hywel invaded Gwynedd in 942 and embraced Powys and Ceredigion, thereby becoming ruler of a very substantial portion of the land of Wales. He summoned six men from every cantref to examine old laws, continue some and abolish others. This process of reducing laws to writing was occurring throughout Europe. The influence of the church was evident in laws relating to the importance of intention in punishment for wrongs, the encouragement of testamentary gifts to the church and the sanctity of the person of the king. Legal texts of the time were not seen as binding and developed a rule that it was possible for persons to enter into agreements that were outside the law, creating a custom particular to a transaction or occasion. The Welsh king’s role was to enforce the customs of his country: he was not in himself a source of law. Likewise the Norman king’s role was seen to enforce the common law of England. QUEENSLAND LEGAL YEARBOOK 2014 BOOK REVIEWS | Page 405 The chapter continues with a description of the content of the laws. Inheritance within members of royal and wealthy families was an important preoccupation. On the death of a king, the queen was allotted one third of his estate and a status greater than that of any court officers. The king’s successor was usually chosen and was often, but not necessarily, the eldest son. Sometimes the inheritance was shared—but the consequences of dividing up the territory of kingship, which caused the empire of Charlemagne to disintegrate, impelled consideration of more appropriate forms of kingly inheritance.