There had been significant removal of front line Roman legions before this date either in the support of attempts by self-proclaimed emperors to seize the western emperorship (such as Magnus Maximus in 383AD) or to defend Rome itself (Stilicho in 396AD). After these events, whatever Roman army remained (that is professional front-line soldiers) was substantially used to support another self-proclaimed emperor (Constantine III) in 407AD.
The traditional military supply economy that sustained the wealth of Roman Britain no longer operated. Institutions such as the courts which had operated under the authority of the emperor either ceased to function at all or would have had serious limitations on their authority. After all, whose laws were being enforced and by whose authority were those decisions enforced?
A view has been put forward that at this time Roman Britain, or parts of it, underwent a peasant revolt.1 This view draws support from the bagaudae revolts which took place at this time in Gaul (modern day France). Certainly the archaeological evidence attests to an almost complete cessation of Roman style building at this time and the turning over of farms from surplus generating agriculture to subsistence agriculture.2
The traditional school of thought is that the defenceless Britons were now ripe for subjugation and extermination at the hands of invading Angles, Saxons and Jutes who pushed the hapless Britons westward to what is now modern day Wales.3 Sir Victor Windeyer, the distinguished High Court of Australia Judge and legal historian, accepted this view and described the Britons as “effete”.4 It is both misleading and inaccurate and is redolent of history being the propaganda of the victor. Not only were there British kingdoms established in this post-Roman period such as Rheged, Elmet and Dumnonia, but also a British force won a resounding victory against a Saxon force at Mons Badonicus in around 500AD. This victory is written about by the British cleric Gildas in his work De Excidio Britonum, referred to later in this article. Gildas praises the British leader of the period who had an obvious Roman name, Ambrosius Aurelanius.5
However, what is indisputable is that Anglo-Saxon culture over time subsumed both the laws and language of the native Britons in those kingdoms that became Anglo-Saxon and who in many instances became literally second-class citizens under Anglo-Saxon law.
Anglo-Saxon law
The Venerable Bede records that the first written codification of English law took place under the reign of King Aethelbert in the Kingdom of Kent in around 600AD. Aethelbert had been a pagan king who had been converted to Christianity and Bede records that the first of his laws (known as “Dooms”) dealt with the Christian Church.6 Dooms were in fact regal proclamations prescribing what the law was where customary law was either ambiguous or non-existent.
There were no professional judges to adjudicate on disputes either criminal or civil at this time. Such judges did not occur in England until after the Norman Conquest. The usual institution utilised for satisfying disputes was the “hundred”. Originally a military term it became the term used to denote the free male population of a collection of villages or townships. When it met it was known as the “hundred moot”. It gathered monthly and had administrative as well as judicial functions. There were also shire or county moots but having regard to distances and geography these met about twice a year and so the hundred moot was more likely to be the usual venue for dispute resolution. It performed a function not dissimilar to a modern day jury in that lay people decided the outcome of the dispute.
The usual method of trial was by compurgation. This meant the disputant and supporting persons giving an oath attesting to the truth of the disputant’s case. The statement of the witness dealt not only with the facts but, in effect, was an affirmation of the truth of the whole of the claim or the defence of it. The oath had to be given according to a strict formula and if this was not followed the oath was disallowed. The number of oaths needed by a disputant varied according to the nature of the dispute and also the status of the person giving the oath. An eorlman’s (a nobleman) oath was worth 6 times that of a person from the clierlisc (commoner) class. If for some reason a disputant could not give an oath then trial by ordeal was resorted to. This usually involved the inflicting of some trauma either by water or fire which, in keeping with pagan superstitions, were believed to be inhabited by deities and could thus render a supernatural verdict.
Welsh law
Gildas says in his De Excidio Britonum (The Ruin of Britain) that:-
“Britain has Kings, but they are tyrants; she has judges but unrighteous ones …”
It would appear that the idea of a professional judge to decide cases was entrenched in the communities of the Cymri. No doubt this was inherited from Roman institutions and survived in Northern Wales insofar as the settling of civil disputes was concerned well into the 16th Century. There were also professional lawyers,7 called cynghaws (pleader) or canllaw (guide). The cynghaws were advocates who argued cases in the courts.
The first written Welsh laws were attributed to Hywel Dda (a tenth century Welsh King) and appear to deal with a wider range of topics than the Anglo-Saxon dooms. Like the hundred moots, the trial of a dispute was by compurgation but the witnesses dealt with the facts not the law.
One fascinating aspect of early Welsh property law was the specific prescription of who owned the family cooking pot, the cauldron.8 The cauldron always went to a male on either divorce or death. That there were special laws dealing with this otherwise humble home item reflects the Celtic reverence for cauldrons unaffected by the four centuries of Roman occupation. Cauldrons have been found in numerous lakes and bogs in both Britain and Europe and were obviously placed there as votive offerings. Cauldrons also feature prominently in early Welsh legendary tales of King Arthur including Cyfranc Culhwch a Olwen and Preiddiau Annwfn. In the former, Arthur is set a number of tasks including going to Ireland to retrieve a magic cauldron and in the latter he leads a raid into the magical land of Annwn to steal its treasures including a cauldron.
Anglo-Saxon hegemony
Over the ensuing centuries many of the independent British kingdoms were absorbed by Anglo-Saxon ones until Britain became divided into those east of Offa’s Dyke (Anglo-Saxon) and those west (Welsh). The Anglo-Saxon kingdoms gradually modified the laws and customs derived from barbaric and pagan practices principally because of the influence of Christianity. The falling into desuetude of trial by ordeal being a notable example of this influence.
Surviving Welsh kingdoms became stronger, the notable ones being Powys and Gwenydd which retained those legal institutions modelled on Roman ones.
However, separation by language and antipathy ensured that neither legal system influenced the other.
Ken Watson
Footnotes
- The Decline and Fall of Roman Britain by Neil Faulkner, Tempus, 2004, pages 256-257.
- Britain AD by Francis Pryor, Harper Perennial, 2004, page 196.
- The word “Wales” is derived from the Old English word “wealh” which, ironically, means foreigner. The Britons called themselves “combrogi” from which is derived the Welsh name for Wales which is Cymru.
- Lectures on Legal History by Sir Victor Windeyer, Law Book Co, 2nd Revised Edition, page 2.
- The “invasion” theory no longer commands universal acceptance and has been challenged on archaeological grounds by such notable archaeologists as Francis Pryor. See his work Britain AD, op.cit, chapter 6.
- Bede, Ecclesiastical History of the English People, Penguin Books, 1990 revised edition, pages 111-112.
- The Legal History of Wales by Thomas Glyn Watkin, University of Wales Press, 2007, at page 72.
- Watkin, op.cit, page 5.
