II. THE CONSTITUTION AND WORKING OF THE GWELY.

Now, as the gwely was the unit of land-occupation, it is worth while to try to realise a little further what it was and how it worked.

The simplest form of the gwely. The landed rights vested in the chief, and he gives cattle out of the common herd to tribesmen for their maintenance.

Viewed in its simplest, and perhaps original form, it was a family group of four generations, the landed rights of which were vested in the great-grandfather as its chieftain.

The tribesmen, his descendants, had only rights of maintenance. By right of ‘kin and descent’ they had received their da from the chieftain. The flocks and herds of the chieftain were the common stock out of which the da had been given, and there is reason to believe that under earlier custom, on the death of a tribesman, his da went back into the common stock of the chieftain.

Probably at first no succession by representation on a tribesman’s death. But in the codes a peculium admitted which went to children.

At the date of the codes it did so when the tribesman died without issue. But in the codes a peculium of private property of which the da was the kernel is recognised and allowed to descend to a tribesman’s children instead of falling into the common stock.

A redivision takes place per capita as each generation dies off.

When the great-grandfather died, the chieftainship, with the landed rights and the herds, was divided between his sons, who as brothers thus became chiefs of sub-gwelys. But the original gwely did not then break up, because there would be a right of division per capita when the brothers were dead between first cousins, and when the first cousins were dead between second cousins.

The division between brothers was probably originally made only between those sons of the parent who were living at his death. Like the sons of the surviving brothers, the sons of a deceased brother must be content with their da till all the brothers were dead, and in the division between first cousins they would take their share per capita along with the rest.

But at the time of the codes, by what Continental examples lead us to regard as an innovation, the orphaned nephews were allowed in the division to succeed at once, side by side with their uncles, to the share and position which their father would have taken had he survived.

The rights and property of a tribesman dying without issue fall into the common stock.

Even after this innovation, if a brother had died without issue, his brothers as brothers did not at once succeed as co-heirs. The share fell into the common stock till a division, and then went to all the co-inheritors per capita, so that cousins, and it might be even second cousins, took their shares in it.

The introduction of succession by representation to a deceased father’s property and privilege was, as we shall see in Continental cases, a step taken in the direction of individual ownership. It complicated the matter of the division or devolution of the chieftainship in the gwely, but it is a point of interest in connection with the Continental evidence.

A clear understanding of the constitution and working of the gwely, as a typical family group, is so important to this inquiry that it is worth while to place before the reader the passages in codes upon which, taken together with the surveys, the foregoing description of it rests.

Clauses in the Venedotian Code.

The following is the clause in the Venedotian Code describing what took place in the gwely, under the heading ‘The Law of Brothers for Land:’

Thus, brothers are to share land between them: four erws to every tyddyn [homestead]. Bleddyn, son of Cynvyn, altered it to twelve erws to the uchelwr, and eight to the aillt, and four to the godaeog; yet, nevertheless, it is most usual that four erws be in the tyddyn.…

If there be no buildings on the land, the youngest son is to divide all the patrimony (trew y tat), and the eldest is to choose, and each in seniority choose unto the youngest.

If there be buildings the youngest brother but one is to divide the tyddyns, for in that case he is the meter; and the youngest to have his choice of the tyddyns; and after that he is to divide all the patrimony; and by seniority they are to choose unto the youngest; and that division is to continue during the lives of the brothers.

And after the brothers are dead, the first cousins are to equalise if they will it; and thus they are to do: the heir of the youngest brother is to equalise, and the heir of the eldest brother is to choose, and so by seniority unto the youngest; and that distribution is to continue between them during their lives.

And if second cousins should dislike the distribution which took place between their parents, they also may co-equate in the same manner as the first cousins; and after that division no one is either to distribute or to co-equate. Tir gwelyauc is to be treated as we have above stated.[22]

Clauses in the Dimetian Code.

In the Dimetian Code the same rules of division are stated as follows:

When brothers share their patrimony (tref-eu-tat) between them, the youngest is to have the principal tyddyn, and all the buildings of his father, and eight erws of land, his boiler, his fuel hatchet, and his coulter, because a father cannot give those three to any but the youngest son, and though they should be pledged they never become forfeited. Then let every brother take a homestead (eissydyn) with eight erws of land, and the youngest son is to share, and they are to choose in succession from the eldest to the youngest.

Three times shall the same patrimony be shared between three grades of a kindred, first between brothers, the second time between cousins, the third time between second cousins, after that there is no propriate share of land.[23]

After there shall have been a sharing of land acquiesced in by co-inheritors, no one of them has a claim on the share of the other, he having issue, except for a sub-share when the time for that shall arrive. Yet whosoever shall not have any issue of his body, his co-inheritors, within the three degrees of kin from the stock, are to be his heirs.[24]

Only by adhering very closely to these texts can the gwely be understood. They seem at first sight to refer to the tyddyns or homesteads, but, as we have seen, the landed rights of grazing in the villatæ in which the gwelys were located were included also.

How the divisions worked out in practice.

It would obviously be a fair critical question to ask, what happened when the second cousins at last broke up the gwely of their grandfather and divided the land, or let us say the homesteads and the tribal rights of grazing on the land, for the last time equally per capita? There might be twenty or thirty of such second cousins. Did the original gwely split up into twenty or thirty new gwelys? Let us try to realise what happened by carefully following the text, in the light of the Denbigh Survey.

Let us take a hypothetical case in which the gwely of X is described by the surveyor as holding an undivided share of the rights of pasture, &c., in a particular villata or in several villatæ; and assume that, according to the record, the internal divisions of the gwely followed the family division of the descendants of X, as in the following table. Then, applying the rules of the clauses as to tir gwelyauc, let us see how it would work out in the hypothetical case stated.

Now let us suppose that X (the great-grandfather, from whom the gwely is called the gwely of X) is dead. While his sons A and B are alive they share equally in the grazing and other rights. When A is dead and so long as B is alive no change is made except that A’s two sons share equally their father’s right to which, in the phrase of the codes, they have ‘ascended.’ B at length dies. There are five grandsons, first cousins, who have a right to share in the rights of the gwely of X per capita. There is now therefore a rearrangement after which A’s sons share and hold jointly only 2-5ths, while B’s three sons hold jointly 3-5ths. Equality per capita among grandsons has now been effected. But the gwely goes on. It cannot be broken up because in another generation the great-grandsons may require a fresh division.

The process is a continuous one.

Next let us see what happens when all the grandsons are dead and the final division per capita takes place. There are nine great-grandsons. Is the gwely of X now to be divided into nine new gwelys? Certainly not. The grandsons of A are entitled to 3-9ths only, and this they divide per capita, being first cousins; one family takes 1-3rd and the other 2-3rds. The portion which has fallen to them of family rights in the gwely of X has become a separate gwely, called either the gwely of A or, as we sometimes find in the Denbigh Survey, the ‘gwely of the grandsons of A’—‘gwely weiryon A.’ The other portion has become either the gwely of B or the gwely of the grandsons of B—‘gwely weiryon B.’

The grandsons of B, being first cousins, have of course redivided their 6/9ths equally per capita, and the internal rights of the gwely of the grandsons of B are

Bᵃ’s two children have 2/6ths.	} of 6/9ths.
Bᵇ’s three children have 3/6ths.
Bᶜ’s one son has 1/6th.

They cannot break up the gwely of ‘the grandsons of B’ because they are not second cousins. But when all of them are dead, their children will be second cousins and may do so, and then three new gwelys will be formed in the same way as above, and so on for ever. The process is continuous and always within the same rules of ‘tir gwelyauc.’

This seems to be the state of things as regards succession within the gwely resulting from the rules laid down in the Codes and found at work by the surveyors of the Lordship of the Honour of Denbigh. But we must remember that, apart from these rights of succession, each tribesman on becoming a tribesman had been the recipient of his da, and so had had cattle of his own all along in the common herd.

The rights of females in the gwely.

Finally, the position of females in the gwely should not pass without recognition. They are not mentioned in the statements of landed rights because, provision having been made for their maintenance independently of their father, they were assumed, whilst claiming their ‘gwaddol’ or portion, to take this with them, on marriage, out of the gwely. They ought to be married into another gwely, within which their sons in due course would receive inheritance and landed rights by paternity. Only on failure of this could their sons claim landed rights by maternity in their mother’s original gwely.[25]

III. THE LIABILITY OF THE WIDER KINDRED FOR GALANAS IN CASE OF HOMICIDE.

Such being the gwely, we pass on to the wider kindred, embracing the descendants of seven (and for some purposes nine) generations from a common ancestor.

The galanas in lieu of blood feud between kindreds for homicide, but none within the kindred.

We find from the Cymric Codes that the members of the wider kindred had common responsibilities in case of a homicide causing a blood feud between kindreds. A murder within this wider kindred was regarded as a family matter. The murderer was too near of blood to be slain. No atonement could be made for so unnatural a crime. There was no blood fine or ‘galanas’ within the kindred. The murderer must be exiled. But a murder of a member of one kindred by the member of another, inasmuch as, if unatoned for, it would under tribal custom have produced a blood feud between the two kindreds, was the proper subject for the substituted payment of the blood fine or ‘galanas.’ The galanas was thus a payment from one kindred to another in lieu of the blood feud. But its amount was divided in payment on one side and in distribution on the other, in varying proportion according to nearness of relationship to the murderer or the murdered person as the case might be. And in these payments and receipts all the individual tribesmen within the kindred who had received their da must take their share if needful.

Payment and receipt by maternal as well as by paternal relations.

The question who had to pay and who had to receive was moreover complicated further by the fact that it involved maternal relations as well as paternal relations. It has been very properly pointed out that, however it might be as regards money payments, it is difficult to conceive how the liability of maternal relations could be worked in the case of actual blood feud and fighting. A man might have to fight for his maternal relations against his paternal relations, or the reverse. In such a case what must he do? How should he act? He might be in an impossible position.

Light upon this point and others may be obtained, perhaps, when the evidence of ‘Beowulf’ is analysed. This evidence will show that a man may have good cause under tribal custom not to join in some feuds. And further it will remind us that feuds often arose in contravention of tribal usage, breaking the peace which in theory the link of marriage ought to have secured.

In the meantime it would seem possible that the custom of a tribe might, for anything we know, forbid marriage within the near relationships of the gwely, and beyond the limits of the wider kindred. In such a case, paternal and maternal relations might all be within the kindred, so that properly speaking a quarrel between them could not become the subject of a feud.

Marriage a link between two gwelys. But as regards galanas the wife remained in her own kindred.

In such matters it is obvious that a good deal must depend upon the view taken of marriage itself at the particular stage of evolution in which the society might be. And it may as well be said at once that we should be quite wrong were we to regard marriage from the Roman point of view, i.e. as a transfer of the woman out of the potestas of her parents into the potestas of the husband. The Cymric example, to begin with, was quite different. The marriage of sisters to tribesmen from whom their sons could inherit tribal rights was a duty cast upon the kinsmen of the gwely.[26] It was thus an arrangement between two gwelys—a link between them—but no transfer. If a wife were slain, her galanas or death fine did not go to the husband and his family; it went to her kindred.[27] If a wife should commit murder, it was the wife’s family and not the husband’s on which rested the payment of galanas for her crime.[28] If the husband were killed the wife took one third of the saraad or fine for insult and wounding, but she took no part of the galanas of her husband.[29]

These points are in a sense unexpected. They belong to a stage of social life as far removed from Roman rules, or modern ones, as they are from the stage in which a wife was either purchased outright or stolen. And yet we shall find them in principle more or less clearly repeated in the varying customs of some of the tribes whose laws we are about to examine.