We were well primed before ever we left Gwynedd, and the prince's stand was unshakable. He acceded to the king's ruling that such important cases between lords must be heard at places and times fixed by the judges, surrendering the exact position stated in the treaty, that a cause should be heard in the lands where it arose. But not one point more would he yield. Arwystli was Welsh, had always been Welsh, lay in the very heart of Welsh land, and could not be, and never had been, subject to English common law. On that we stood absolutely.
The hall where the bench sat was full, for the meeting of those two implacable enemies, even by proxy, drew men from all the country round to watch, and especially lawyers, eager to observe the conduct of such important pleas. Griffith ap Gwenwynwyn came in person, with a bevy of law-men about him, and kept close to their sleeves during the hearing, ready to pluck and whisper and prompt, for he was certainly as skilled in prevarication as any of his advisers, though he preferred to work through them. His big frame had run somewhat to fat since I had last seen him, his thick brown beard and hair were laced with grey, and his walk slower and more ponderous than of old. He was then in his middle sixties, strong as a bull, but growing clumsy, and his English finery of furred gown and ample surcoat made him look bulkier than he was. He settled himself solidly in his place behind the line of his lawyers, and swept the court with sharp, narrowed eyes, dwelling longest upon the prince's attorneys, seated opposite. Most of Arwystli was in his hands, he would not let it go without a long and bitter struggle.
We had three justices on the bench before us, two Welsh and one English, but there was not a man in court who did not know that the judgment rested with the presiding judge, and the others were there merely to supply a fair balance and a knowledge of Welsh customs and traditions. One of them was Goronwy ap Heilyn, a good friend to us and sometime among Llewelyn's own lawyers, who had accepted office under the king in this commission with the true intent to maintain and protect justice for his fellow-countrymen, for he was a man of Rhos, and knew and loved the north. The other was Howel ap Meurig, no friend to us, which at least made the bench appear impartial. He was an englishified Welshman who had abandoned his own country for royal service more than fifteen years earlier, and done very well out of it, with a knighthood and a coat of arms to show, but he was no more on an equal footing with Walter de Hopton than was Goronwy.
I had seen this Hopton before, but never so close. He came from a border family that held land both in Hereford and Salop, and he was in middle life, perhaps fifty then, but looked younger, being very neat and smooth, with well-shaven chin and pale, plump cheeks, and very quick, cool eyes that he kept half-hidden under large white eyelids. He was himself no mean litigant, as a great many men had already learned to their cost.
As soon as the judges were seated and the court in session, Hopton signified to the prince's chief attorney that he might proceed. Master William rose, and at once demanded that Griffith ap Gwenwynwyn, as the opposing party, should attach himself by producing hostages, according to Welsh law, after which formality the prince would willingly prosecute his right in the matter according to
cyfraith,
the Welsh code of Howel the Good. This on two grounds, that the land in question was wholly Welsh, lay within the borders of Wales, and both the parties claiming it were themselves of Welsh blood and estate; and further, that the treaty obtaining between England and Wales laid it down that claims of land within the boundaries of Wales should be conducted according to Welsh law. Both tradition and custom, and the letter of the treaty, demanded that the cause be tried by Welsh law and no other.
Griffith's lawyer got up to counter, prodded briskly by his lord.
"The Lord Griffith," said the attorney, "is a baron of the king's Grace, a marcher lord holding the land of Arwystli by barony of the king, as he does all his other lands. He is ready to proceed and defend his holding according to the common law, as is his right."
"Though the Lord Griffith is a baron of the king, and a marcher," said Master William, "that cannot affect the land of Arwystli, which cannot possibly be called march land. March land is that which is close adjacent to Welsh land. This cannot be said of Arwystli. It lies in the central parts of Wales, and within the boundaries of the principality, and is purely Welsh. There is no way in which it can be considered as march land. Moreover, the Lord Griffith and all his forebears are of Welsh condition, as can well be proved according to Welsh law, if the bench require such proof. I ask again that this cause be conducted according to Welsh law."
Hopton looked under his pale eyelids at Griffith and his covey of lawyers, but did not have to prompt them for an answer. The second in rank rose from his place, and leaned for a moment to his lord, who was whispering in his ear some last admonition.
"If it please the court," said the man, smoothing his sleeves, "there are any number of lords marchers who hold lands not merely adjacent to the border, but as deep into the heart of Wales as is Arwystli, but nevertheless hold them by barony from the king, as they do their other lands. I instance Maelienydd and Gwerthrynion, which are held by Roger Mortimer, but lie in the distant parts of Wales. A case was brought against him for possession of certain of these lands, and he was impleaded not by Welsh law, but
coram rege,
in the king's court at Windsor, and that case was concluded in Shrewsbury, under the king's justices. I can cite other such cases, all concerning lands deep in Wales, but pleaded by common law. Should the court require that these be proven here, I am willing to prove them. His Grace King Edward is in seisin of all pleas arising between his barons of the march and of Wales, to be heard before him in his court, according to common law. Should such a case be prosecuted otherwise, the lord king's prerogative is prejudiced, and the crown deprived and affronted."
There was heard the true voice of Griffith himself, who knew only too well how to turn what sounded like a plea at law into a sly reminder how vulnerable was the position of special commissioners appointed by the king. As they had been set up, so they could as quickly be put down. As a plea the peroration might sound strong, but was in fact very weak, for how could the king's prerogative be infringed by strict observance of the terms of a treaty the king himself had argued out, agreed to and sealed hardly more than a year previously? Not even precedent should be able to upset a clearly stated ruling so recently kid down. For quite apart from the general principle stated in the treaty of Aberconway, that cases should be tried in those parts where the disputed lands lay, and by the kind of law there applying, there was also a special clause particularly laying down this rule in cases brought by the prince of Wales. There it was set down in so many words that if Llewelyn wished to claim right in any lands taken and held by others than the crown—excepting only the Middle Country, which was ceded in full—the king would show him justice according to the laws and customs of those parts where the impleaded lands lay. I remember even now how the Latin ran—
secundum leges et consuetudines partium
illarum in quibus terre ille consistunt.
There could not be a clearer undertaking. Nor was Griffith's parade of precedents much to the point, since it could not wipe out that clause, and further, the prince of Wales was not a baron either of Wales or of the march, but a sovereign prince, and again, could not be used as were those barons. The procedure in the treaty had been devised and agreed particularly to define his position and the treatment to which he was entitled.
Legally, then, this was pleading high in sound but low in relevance, and the real purport was at the end, in what was rather a warning, even a threat. "Beware," said Griffith's attorney, shrewdly eyeing Hopton in particular, but the two Welsh assessors also, "how you take even the least risk of infringing the king's prerogative, whatever sanction of treaty and seal you may have for the act that incurs his displeasure. Wise men, if they are not sure of their ground, defer."
I wondered then, and was ashamed of the thought and put it from me, whether King Edward's own men of law had not conferred with Griffith and put this pointed pleading into his mouth. But it seemed too base a procedure, and I told myself I was falling into David's too suspicious frame of mind before we had tested out the king's honesty and goodwill. Whereas from Griffith this was just what might have been expected. So I absolved the king from complicity. Since then I have wondered, many times.
"You wish to make a counter-plea to this?" asked Hopton, looking at Master William and keeping his bland face inexpressive.
"With the court's permission." And the old man took up all those points which Griffith's plea had merely covered over without touching. That he had made no mention of the special provision made in the treaty for this very purpose, and approved, indeed laid down, by the king. That as tenure by marcher barony was not the same as tenure by English barony, so the status of the prince of Wales conformed to neither, for which reason the provision before-mentioned had been devised. So far merely in refutation, but then he went further.
"The lord king, as all men know, is lord of many lands and provinces, and each of these lands under his dominion has its own laws and customs according to the traditions and usages of that part where it lies. Gascony, Scotland, Ireland, England, each has its own ways and laws, and that greatly to the enlargement of the crown's privileges, and not at all to their derogation. The prince of Wales seeks only the same right for his person and his principality, that he should also have his own law, the law of Wales, and proceed according to that law, and not otherwise. And especially he invokes those clauses in the treaty of peace between himself and the lord king, by which the king himself, of his own will, granted Welsh law to the prince and people of Wales. I say that this is his entitlement by common right, as those other nations gathered under the king's lordship have their laws and customs, and their language. But also by a particular right, laid down by the king in treaty, he seeks to enjoy the privilege so markedly granted him under the royal seal."
Adam, his clerk, who sat beside me in court, was glowing and grinning by then, for the old man's blood was up, and he had never spoken to better purpose. I had thought Griffith might attempt no further in that line, having to all appearances the worst of the argument, but he did pluck at his man's sleeves and send him into the lists again, somewhat less confidently but volubly still.
"With the court's leave, it must be observed that all those several nations, however they may do in other causes, in the king's court are governed by a single common law, and not by varying and opposing laws in one and the same court. The king's Grace is in seisin of pleas in his court between his barons, whether Welsh or marcher, and therefore in that court and by common law this plea should proceed. According to that law the Lord Griffith is ready and willing to answer all claims, but not by the
cyfraith
of Howel Dda."
"And my prince," said Master William, "lays claim to the Welsh law expressly granted to him by the king in the treaty, and is ready to pursue his right to judgment, and to answer any and all claims, by that law and no other. For if he abandoned that right, it would be a concession without precedent, and greatly to his diminution."
On these opposing declarations the parties stood, and neither would give way. It was open to the bench to weigh and decide between the two claims, indeed that was held to be the reason why this commission had been set up, and not at all to adjourn and defer and commit all perilous decisions to another court, but I knew then that that was what they would do. Not only because Goronwy, and I believe rightly, would come down on the side of the treaty and of Welsh law, while Howel ap Meurig as surely would incline to Griffith's side and find plausible reasons for it, which would leave Hopton in the position of having to cast the final vote himself. That would in any case have been reason enough, for he was too cautious ever to let himself be placed in so vulnerable a position. But I believe he had another and more absolute reason for avoiding. Those reasons he gave were sound enough, but I do not believe he ever had to do more than seem to consider. It was never intended that the prince's claim should come to any conclusion that day. Apart from the record, all those pleadings and counter-pleadings had been breath wasted.
"You are absolute in maintaining these positions?" said Hopton mildly, turning his half-hidden eyes from one attorney to the other. They said firmly that they were, and neither could nor would move from them.
"This matter is of such importance," he said then, "the parties provided on both sides with such weighty arguments, that it seems rather to have been lifted out of our competence. Both make direct appeal to royal privilege and claim royal sanction, the one by treaty, the other by baronage, and there is substance in both, and both touch the crown prerogative closely. I must confer with my colleagues." And he did so, with great earnestness and in low voices, while his clerks wrote away busily for some ten minutes, but we knew what the end of it would be. I could not blame the bench too much for taking the easy way out of their trap.
The clerk rapped for silence at length, and Hopton delivered his judgment. "We are agreed that we cannot of our own power interpret the clauses of a treaty drawn by the king, except in his presence and with his guidance. Nor could we take any decision affecting the prerogative of the crown without the sanction of the crown. We are therefore agreed that this case must be adjourned
coram regey
and we appoint both parties a day for that hearing in the king's court, one month after Easter, on the last day of April, so that his Grace can decide the questions of law here involved, and make his will known."