The idea of the continuation and extinguishment of 'Welsh' customary land law in the face of Norman-English conquest and legal regime change

Abstract

In the setting of military conquest and revolutionary change, and the consequent resolution of legalities, lawmakers will often attempt to articulate very selective distinctions about the past and the present and about continuities and transformations. The idea of the continuation, or conversely the extinguishment, of customary law is of course a concept which has attracted the attention of historians of the common law, and in the context of land law there has been a particular concern in recent years relating to native title claims in 'settled colonies', principally in the United States of America, Australia, Canada and New Zealand. In line with common law methodology, precedents endow this discourse; and the Welsh case which is cited in this context as the exemplar of the survival of indigenous laws in a post-conquest settlement is 'Witrong v Blaney' (1674) 3 Keeble 401 [84 ER 789]. It has been by way of cases like 'Witrong v Blaney' that Sir Edward Coke's analysis of the legalities of conquest informed the Blackstonian declaration of the colonies, establishing the paradigm within which we still largely function.