Theophilus Jones.

A history of the county of Brecknock. : In two volumes. ... (Volume 2) online

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Online LibraryTheophilus JonesA history of the county of Brecknock. : In two volumes. ... (Volume 2) → online text (page 1 of 54)
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3 1833 00727 0363

^ 2









Deputy Registrar of the Archdeaconry of Brecon.
Enlarged by the notes collected


(Lord Lieutenant of Brecknockshire).




Published and Sold by Blissett, Davtes & Co., 14 Bridge Street.





Laws of Dyfnwal Moel-mud, — Hywel Dda, — the Lords Marchers, — the English Statutes,— Acts and Ordinances

relative to Wales.

^' /^UR first British legislator is placed so far back in the shade of antiquity, that his features are

'n Vw' scarcely discernible, and his laws are not much better known than his character or his person.

^,, He lived, it is said, about four hundred years before Christ, and was called Dyfnwal moel-mud, or

rather Dyfnwal mawl mad^ meaning Dyfnwal the famous or praiseworthy, whose name has been latinized

r^ into Dunwallus Molmutius ; he died about the year 430 before Christ, according to George Owen
. Harry, and of his code only two mutilated extracts remain ; one of them relates to the admeasure-
ment of land, and is quoted in the laws of Hywel Dda and another by Rowland, which asserts the

', sovereignty of the imperial crown of London over the Kings of Wales, Scotland, and Cornwall. The

laws of Dyfnwal continued to be obeyed, as far at least as the savage temper of the times respected

any laws, until the coming of the Romans, when the system of jurisprudence which prevailed among

the conquerors, became that of their subjects while they remained among them. Upon their departure,

• the Britons of Wales seem again to have recurred to their ancient code, on which Hywel Dda King

" of Wales, about the year 940 of the Christian era, built his superstructure, availing himself in the
- progress of his work of the systems of his predecessors, and the advice and assistance of the learned
of his time. Though not a Breconshire man, he had one or two palaces in this county. Llyswen upon
the Wye, where his grandfather, Roderick the Great, appointed the princes of Powys and Cardigan
" to meet to settle and adjust disputes, if such should arise between them, was one of Hjrwel's resi-
dences; and Caerau in Llangammarch near the western confines of the hundred of Builth'was probably

The laws and ordinances of this prince, as Barrington observes in his preface to his Observations
on the Antient Statutes, are the most regular of any extant, and have been wonderfully preserved
considering their antiquity ; but though there are many provisions in them dictated by wisdom and
sound policy, there are some which it is impossible to peruse without a smile, and others which
should not be passed over without censure. It would be foreign to our purpose to recapitulate all
those laws which relate to the King's palace; among them is mentioned the right of the King's
falconer^ to his majesty's attendance, and the obligation of the master to hold his gamekeeper's
stirrup when he had killed a crane, and the claim of the judge of the palace to the cushion for his
night's repose, on which royalty sat by day, is admitted. Whether in the one case the merit of the
falconer was equal to the high honour of the reward, or whether in the other, his majesty's body was
supposed to act as a conductor from his head, and to communicate to the judge's by means of the
pillow, the attributes of justice and mercy cannot now be ascertained, and therefore these and many
other unaccountable and equally whimsical customs may as well be forgotten ; but it is impossible
to avoid reprobating here many of the laws relative of ivomen. Making the proper allowances for the
unenlightened times in which they were enacted, and the almost savage disposition of the inhabitants
of those days, whoever is compelled or led by curiosity to peruse them, cannot avoid exclaiming
against them as generally disgraceful, frequently immodest, and sometimes calculated instead of re-
pressing, to encourage the injuries they seem to be desirous to punish or prevent.


A short review of the leading features of this code, by which the inhabitants of Brecknockshire,

1 Tine Cambro British authors as well as Leland and Gildas " There are some instances in England, as late as 1625, of

assert, that Alfred borrowed many of his laws from those of extraordinary allowances and gratuities to royal gamekeepers : in

Dyfnwal, though some English historians have doubted even of that year Andrew Pitcairne, esq., was allowed £30 per month, and

his existence : VVotton seems to think that his laws are a forgery, 10s. a day for the provisions of pigeons, hens, and other diet for

but while they are quoted in the very code he is translating, at a the king's hawks, a salary equal to that of kee[5er of the seals,

time when it is clear from that circumstance his name and memory {Fcedera, tom. IS). In the same year the king's barber had £100 ;

ined, and when of course if any doubts of their authenticity a surgeon and his wife £150 during their lives ; the king's carver
had prevailed, the legislator Hywel would neither have mentioned £150 per annum ; his physician £230, and the professor of Hebrew
or adopted them, there is no room left for scepticism on the subject. •>>» Oxford only £40 per annum


in common with those of the principality of Wales, were governed for several centuries, will, it is
hoped, not be deemed impertinent or irrelevant here. The distinguishing and general characteristic
of this system was the making satisfaction in money, cattle, or other effects, for all offences and
crimes, murder not excepted ; for injuries to the person or privation ot property to the party com-
plaining of the grievance ; for murder, to the relations of the deceased, and in this latter case, much
pains were taken and labour employed under various circumstances and in different degrees of affinity,
to ascertain who were entitled to receive this compensation, which was more or less in proportion
to the rank the deceased held in th') community ; but even on this serious subject there were now
and then distinctions, to us apparently ludicrous and certainly not to be accounted for. Several
offences, which in the reign of Henry the Eiehth would have been called high treason and punishable
with death, by the laws of Hywel, were commuted for by fine : " the learned in the laws (says one
of these ordinances) have determined that for committing adultery with the king's consort, killing
his ambassadors or violating his protection, the offender shall forieit to his Majesty a golden cup,
having a cover to it, as broad as his face, as thick as the thumb of a ploughman who has been
nine years in that employ ; a silver rod of the same height as the King and as thick as his thumb,
a hundred cows for every cantreff which the offender possessed, and a white bull^ with red ears
for every hundred cows, but if the cows are of a dark colour, then a black bull with every hundred.
For the murder of the King of North Wales this fine shall be tripled," and the lives of the Princes
of Powys and South Wales were, in all probabiUty, protected in a similar manner, though it is not
so stated in this chapter. Their laws, with respect to bail,^ from which much has been borrowed
by the English, and their remedies for the recovery of lands are tedious, numerous, and unin-


The statute of Rhuddlan (12th Ed. i.) recites that women were not then dowable by the laws
ot Wales, but though thej- were not entitled to dower of the lands of the husband, they possessed
a proportion of his effects, and that not only upon his death, but immediately upon the marriage,
and they had a separate control, and the sole disposal of their property, even during the fife of the
husband ; nay, so fuUy was this right established, that the Welsh married ladies could not be pre-
vailed upon to part with it for near two centuries alter the English laws were introduced, as several
of the wills of testators in Breconshire from 1500 to 1700 recapitulate and acknowledge debts due
from and to married women, and in others the husband admits that a sum or sums is due to his
vjife, by mortgage, bond, note, etc. Yet still the British wives were in many cases in ancient times
\ery hardly used, and their countrywomen of this day, though they may smile, and perhaps some of
them tacitly approve of the causes for which it was lawful to separate from a husband,^ will all
of them exclaim against the inequality of the crimes for which they might be chastised by him.


Much pains are taken in these laws to describe what articles of household furniture and other
effects shall go with the husband and what with the wife in case of separation, and a laborious and
impracticable attempt is made to fix a specific value upon every species of property, in case it
should be lost, stolen or injured : for instance, the King's blanket (the effeminate luxury of sheets
was then unknown), was worth one hundred and twenty pence, the Queen's flesh-fork twenty-four
pence, the King's chess-board one hundred and twenty pence, a bucket one penny, a pail to wash
the feet in one penny, a house-dog, even though he was the King's, only fourpence, while a shep-
herd's dog was equal in Value to an ox, if it could be proved by his owner and neighbours upon
oath that he was accustomed to precede the cattle to the field in the morning, and bring them home at
night ; the purloining, destroying or injuring of any of these effects or animals was punished in
general by mulct, in the same manner, though in a fighter degree, with the death of the King.
The legislators have proceeded to recapitulate with a tedious mmuteness and apparently with a

1 There wft= a breed of this kind and colour upon tho banks of the laws of this world are of no effect either in heaven or hell, but

the lowi me arraarthenshire which were particularly valuable, only reach the living. The reason is this, men in the transactions

' V 0"°")- Richard s Wehh dictionary sub. verb. Ysgafrllynnig. of this life may be bound bv human laws, but the angels and devils

i^mgley m his Ammal Biography says, that all wild cattle are of are subject to no law but" to the power and will of God." This

this colour and this fine being laid upon the n-Iiok of Wales seems denying upon the grave alludes to a law Ijy which a creditor,

to prove the truth of his assertion. charging a dead person with being svu-ety to him, was to go with

- ^P°" tfj'f i^^ "I iiail we have a remark rather whimsically six persons to swear to that fact on his grave if it could be found.
intr<,duced, it a surety or one who has become bail die lea\ang a 3 Foul breath wa>i one of the causes for which a woman might

son, that son shall be bound by his father's act. There are those separate from her husband, at the same time he might lawfully

Who say that he may upon his fathers grave lawfully deny his chastise her either for reflecting upon his beard, endeavouring to

having been surety, but the law is, for the wise say that procure his death, or committing adultery.


peculiar whimsicality, the remedies in case some of these animals did any mischief to the property
of those to whom they did not belong, and it should sometimes seem as if they meant to punish the
fowl or beast himself, and endeavoured to make him sensible of his crime ; as when they enacted
that if geese were found trespassing in corn, it was lawful to kill them with a stick as long as from
the elbow to the tip of the middle finger ; if in a barn or rick-yard, to squeeze them to death with
a forked stick placed on their necks ; if a cock trespassed, one of his spurs might be cut off ; if a
calfi in corn, he might be kept a whole day from sucking, and then liberated, and if a hen was
caught filching, she might be detained till she laid an egg. In all these remedies, as well as the
recital of the damages to be paid when a cat is found mousing in a flax-plat, there is something
extremely ludicrous and unaccountable at this distance of time.

Yet in one instance their law was superior to that of England ; according to the latter, if beasts
were impounded, which hare been taken trespassing, they can only be liberated, if a surly neighbour
refuses to accept of amends, by what is termed a replevin ; by Hywel's code it was provided that if
a man impounded a beast and amends were tendered and refused and the beast died, the taker was
obliged to pay the value of it to the owner, and if an animal was impounded and he was permitted
to graze by the person who impounded him, the taker did not, says one of these ordinances, lose
his right to receive satisfaction because he had behaved kinder than the law required.


With respect to the administration of justice as it is described and explained in this code, there
are, among a heap of trash, many wholesoms rules, and much good sense. The judges received
customary and. specific fees from both parties in all causes, but these were equal and well known,
and in their history we never hear of any instances of corruption or accusations against their magis-
trates for receiving bribes. These expoimders and ministers of the laws were required to be men of
experience, and at least twenty-five years of age when appointed and to have a beard, for say the
laws, "it is not meet to see a young man sitting in judgment upon the aged." The modes of
administering oaths were different in different cases, as was the credit given to witnesses, which
varied according to their numbers, their rank in life, their character in their neighbourhood, their
relative situations, or the mode by which they obtained their knowledge of the facts to which they
deposed. The general manner of administering an oath was by laying the right hand on the altar,
and swearing by God and the relics placed thereon : in contracts and questions as to buying and
selling, they gave to each other their right hand and plighted their faith, or swore by the faith of
a Christian. This mode of asservation was called Briduw ; a word now become obsolete, and the
etymology of which is not understood : to testify a falsehood in this latter manner was accounted
nearly, if not equally, criminal with perjury upon the altar. In most cases two witnesses were
required, as by the Roman or Canon law. In questions as to land, the witness's testimony was
either reduced into writing and then read to him, as now practised in depositions in chancery, or
else the substance was taken down and repeated by the advocates to the Court and the witr>esses
then for the first time asked, if what was said was true, for this, says one of these ordinances, is
the oath of a Ceidwad (or tenant) that " all which the advocate Ims put it into his head to swear
is true in every particular : this is curiously worded, but the meaning, from the sentences following,
is that the testimony read or repeated to the witness as having been given by him, or coming out
of his mouth, is true, etc.

These witnesses, though of the same rank, were of different descriptions, and to the testimony
of some of them more credit was attached than to others, though their characters were equally
respectable. The general name for a witness was Tyst, or Tysd, an old Armoric word which will
probably be derived from the Latin testis. In these laws, witnesses were again divided mto Ceidwad
or Gwarcheidwad, Gwybyddiad and Arwaesaf. The former is translated Custos by Wotton, and
explained to be the tenant or possessor of the lands in dispute, whose evidence upon this subject
could neither be rejected or discredited ; it was therefore regarded as of the highest import and
considered as most sacred. The next in point of respect or attention was the Gwybyddiad, testis
conscius, or witness who swore to a fact which he saw, and the third was called Arwae.saf, meaning
not only a person who pro\-ed or warranted a beast or other personal chattel, but, as Wotton says,
the warranty itself.


In the Welsh Courts of Justice there were only two terms ; these lasted from November to
February, and from May to August, to avoid interference with the ploughing and sowing season and
the harvest. In actions concerning lands, commenced on the 9th of November, the claimant was

1 This punishment of the animal was probably taken from the code of Dyfnwal Moel-mftd, when tho druidical doctrine of
the transmigration of souls was the faith of Britain.


entitled to judgment or sentence on the 9th of May following, and if then postponed he had a right
to apply to the King, who compelled the Court to be open to him on any day he desired. Having
cursorily mentioned disputes about land, it should be here observed that the tenure by which they
were universaLly held in old times was called Gavelkmd ; by this was meant an equal partition of
the lands of the parents among all their male children. It is specially provided by these laws that
the inheritance shall be adjudged in equal proportions to every son, and it is also decreed that no
crime or offence of the father shall prejudice his issue, or prevent their succession to the inheritance
of his property : " Gyfraith Hywel a'i barn i'r mab ieuaf megis i'r hynaf, ac a farn na ddoter
pechawd y tad nai ei anghyfraith yn evhjn y mab am dref ei dad," so that the cruel, though
perhaps politic consequences of forfeiture and corruption of blood, were not known to the Welsh.
The real origin and definition of the term Gavelkind; and whether it ought to be sought for in the
British or Saxon annals, is a question that has been variously agitated and determined by etymolo-
gists. Many learned authorities are ranged on both sides. Sir Henry Spellman, assuming it to be
Saxon, affirms that it originally came from Germany ; he thus describes the tenure, " Qua omnes filii
ex cequis portionibus patris adeunt hcereditatem," and from Tacitus proves it to be the vetus mos
Germanorum. Lambard compounds it from three Saxon words " Zipeal cyn, i.e., give to all the
kindred " ; this certainly is not agreeable to the natiire of that tenure which gives only to the
males. Blount derives it from Zafel, census, tributum, and cyno, natura, genus ; and Verstegan, like
Swift, seriously tells us that it is merely a corruption of "give all kind," meaning give to every
child his part or share. Mr. Somner adheres to the Saxon etymology, and says, that in the Irish
and Welsh vocabularies the word is sought for in vain ; from thence he concludes that it was peculiar
to the men of Kent, though in after times it was imitated by others.


On the other hand. Dr. Powel very properly observes that gafael is a British term signitying a
holding, because every one of the sons did hold some part of his father's lands, as his lawful son
and successor, but it is stranj,e that he passes by the last syllable kind, as ir it were a mere expletive
or termination, which he writes in a common character, while capitals distmguish its fore-runner
GAFAEL. Mr. Sylas Taylor in his very ingenious treatise on Gavelkind enters more fully into the
merits of the case, and is we beheve esteemed one of the best expositors upon the nature of the
tenure ; he observes that the word gafael (according to English pronunciation Gavel) is derived from
the British verb gafaelu, which Dr. Davies renders, tenere, prjehendere, and is still a word in common
use among the Welsh in their ordinary discourse, as cymmerwch gafael, take hold, gafael swyddog
is an officer of arrest, gefail from the same verb is a pair of tongs, or smith's vice. There is a
parish in Monmouthshire adjoining to Urchenfield, evidently deriving its name from this custom,
Llangattwg Meibion (now pronounced Fibon or Vibon) Avel, St. Cadocus de tenura fiUorum ; Mr.
Taylor supposes the latter syllable to be from Cenedl, which signifies a clan or family, and in this
he is supported by Wotton and his assistant Moses WilHams. Lastly, Dr. Whitaker in his History
of Maiichester supposes it to be of Irish origin, " as the Irish (says he) is much nearer than the
Welsh to the old Celtic, so it furnishes the very word kinead or kind ; whence it was naturally
denominated among the Britons, gafael kinead or the family estate." Mr. Edward Ilwyd in his
Welsh dictionary certainly gives the word Cine a family, Cineadh, a nation, descent, etc., and Cinid,
common or peculiar to a family, from whence we are to look tor the origin ot the English word kin
and kindred. Llwyd also has an Irish verb GahJiam to take, receive, etc., and Gabhallas, a taking,
which of course are of the same family as gafaelu and gafael.

It has already been observed that gavelkind implied an equal distribution ot property among
the male children of a family ; but it is remarkable that in the British as well as the Irish usages,
in such partition, no distinction appears to have been made between legitimate and illegitimate
children, but the progeny of a wife, and concubine, took equal shares, and so strong was the connec-
tion subsisting between the foster father and son that it was especially provided by law that " if a
villain should take the son of a Baron to be fostered with the Baron's consent, such child should be
participator of the estate of the villain equally with his own sons."

To prevent aU disputes between the brethren, by the laws of Hywel Dda, the mode of partition
was thus particularly described : " Three times shall a general division be made, first between
brethren, afterwards between cousins, and the third between second cousins, after which there shall
be no division of lands. When brothers shall divide their father's property amongst them, the
youngest shall have the choice tenement with the appurtenances and the kettle and falling axe and
the coulter. In law a father cannot bequeath these or give them to any one but the youngest son,
and though they should be pawned, they shall never become forfeited ; after that, let every brother


take by seinority, the youngest brother to divide." In all cases, however, the younger held his
share in subordination to the elder who was therefore called Cyn-rhan.


Berore leaving the laws of Hywel, we briefly state the practice of the ancient Britons in questions as
to land. In causes of this nature, the whole of the proceedings were had, and held upon the lands in
dispute. The King, or the person who represented him, presided and sat with his back to the sun and
wind, lest he might be incommoded by them ; the judge of the palace or senior judge of the Cwmwd
being placed on his left, and another judge on his right hand : next to them sat the priest or priests,
then two elders and the great men of the country. In the middle or immediately before the King, or
his representative, was left a lane or entrance into the Court or his presence, on the right of which
stood the demandant, his council and attorney, and behind them the sumraoner, and on the left the
defendant, his council, attorney and summoner in the same manner. Pledges being first taken from
both parties to abide by the decision of the Court, and silence being proclaimed by the crier, upon
pain of forfeiting three cows or one hundred and twenty pence, the judges proceeded to hear the
cause. The demandant was first called to name his council and attorney ; this done, the judge
asked him, " Do you place your entire confidence in them to gain or lose ? are you also determined
to abide by the decisions of this Court ? " Being answered affirmatively, he put the same questions
to the defendant, and upon his agreeing to abide by the directions and conduct of those he employed

Online LibraryTheophilus JonesA history of the county of Brecknock. : In two volumes. ... (Volume 2) → online text (page 1 of 54)