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

In the circumstances 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”. In line with common law methodology, precedents endow this discourse; and the Welsh case which is cited as the exemplar of the survival of indigenous laws in post-conquest settlement is Witrong v. Blany (1674) 3 Keeble 401 [84 ER 789]. It has been by way of cases like Witrong v. Blaney that Coke’s analysis of the legalities of conquest informed the Blackstonian declaration of the colonies establishing the paradigm within which we still largely function. However, a close reading of Witrong reveals an indistinct and possibly hesitant judicial position on the effects of the 1535 Act 27 Henry VIII cap. 26, possibly indicating that at its heart this piece of legislation had an inherent ambiguity so far as the idea of continuation or extinguishment of Welsh law was concerned.