Arguments of Bruce-and Baliol
Indeed, before the final judgment was pronounced, these frivolous competitors voluntarily retired. They had been set up by Edward, with the design of removing the powerful opposition which might have arisen to his schemes, had they declared themselves against him; and to excuse his delay in giving judgment, by throwing an air of intricacy over the case. This object being gained, the king commanded the commissioners to consider, in the first place, the claims of Bruce and Baliol; thus quietly overlooking the other competitors, whose rights were reserved, never to be again brought forward; and virtually deciding that the crown must be given to a descendant of David earl of Huntingdon. The scene which followed was nothing more than a premeditated piece of acting, planned by Edward, and not ill performed by the Scottish commissioners, who were completely under his influence. The king first required them to make oath, that they would faithfully advise him by what laws and usages the question should be determined: they answered, that they differed in opinion as to the laws and usages of Scotland, and its application to the question before them; and therefore required the assistance of the English commissioners, as if from them was to proceed more certain or accurate advice upon the law of Scotland. A conference with the commissioners of the two nations having taken place, it was found that the differences in opinion were not removed. The English commissioners modestly refused to decide until they were enlightened by the advice of an English parliament; and the king, approving of their scruples, declared his resolution to consult the learned in foreign parts; and recommended all persons of both kingdoms to revolve the case in their minds, and consider what ought to be done. He then appointed a parliament to assemble at Berwick on the 15th of October; at which meeting of the Estates he intimated he would pronounce his final decision.
On the meeting of this parliament at the time appointed, Edward required the commissioners to give an answer to these two questions: 1st, By what laws and customs they ought to regulate their judgment? or, in the event of there being either no laws for the determination of such a point, or if the laws of England and Scotland happened to be at variance, what was to be done? And, 2d, Was the kingdom of Scotland to be regarded as a common fief, and the succession to the crown to be regulated by the same principles which were applicable to earldoms and baronies? The commissioners replied, that the laws and usages of the two kingdoms must rule the question; but if none existed to regulate the case, the king must make a new law for a new emergency; and that the succession to the Scottish crown must be decided in the same manner as the succession to earldoms, baronies, and other indivisible inheritances. The king then addressed himself to Bruce and Baliol, and required them to allege any further arguments in explanation of their right; upon which they entered at great length into their respective pleadings upon the question.
Bruce insisted, that being the son of Isabella, second daughter of David earl of Huntingdon, he was next heir to the crown; that Alexander the Second had so declared to persons yet alive, when the king despaired of having heirs of his own body; and that an oath had been taken by the people of Scotland to maintain the succession of the nearest in blood to Alexander the Third, failing the Maid of Norway and her issue. He maintained, that a succession to a kingdom ought to be decided by the law of nature, rather than by the principles which regulated the succession of vassals and subjects ; by which law, he, as nearest to the royal blood, ought to be preferred; and that the custom of succession to the Scottish crown—by which the brother, as nearest in degree, excluded the son of the deceased monarch—supported his title. He contended that a woman, being naturally incapable of government, ought not to reign; and, therefore, as Devorguilla, the mother of Baliol, was alive at the death of Alexander the Third, and could not reign, the kingdom devolved upon him, as the nearest male of the blood-royal.
To all this Baliol replied, that as Alexander the Second had left heirs of his body, no conclusion could be drawn from his declaration; that the claimants were in the court of the Lord Paramount, of whose ancestors, from time immemorial, the realm of Scotland was held by homage; and that the King of England must give judgment in this case as in the case of other tenements held of the crown, looking to the law and established usages of his kingdom; that, upon these principles, the eldest female heir is preferred in the succession to all inheritance, indivisible as well as divisible, so that the issue of a younger sister, although nearer in degree, did not exclude the issue of the elder, though in a degree more remote, the succession continuing in the direct line. He maintained, that the argument of Bruce, as to the ancient laws of succession in the kingdom of Scotland, truly militated against himself; for the son was nearer in degree than the brother, yet the brother was preferred. He observed, that Brace's argument, that a woman ought not to reign, was inconsistent with his own claim; for if Isabella, the mother of Bruce, had no right to reign, she could transmit to him no claim to the crown; and besides all this, he had, by his own deliberate act, confuted the argument which he now maintained, having been one of those nobles who swore allegiance to Margaret, the Maiden of Norway.
The competitors, Bruce and Baliol, having thus advanced their claims, King Edward required of his great council a final answer to the following question, exhorting the bishops, prelates, earls, barons, and commissioners, to advise well upon the point:—" By the laws and customs of both kingdoms, ought the issue of an elder sister, but more remote by one degree, to exclude the issue of the younger sister, although one degree nearer?" To this the whole council unanimously answered, that the issue of the elder sister must be preferred; upon which Edward, after affectedly entreating his council to reconsider the whole cause, adjourned the assembly for three weeks, and appointed it to meet again on Thursday the 6th of November.
On this day, in a full meeting of all the competitors, the commissioners, and the assembled nobility of both countries, the king declared: that, after weighing Brace's petition, with its circumstances, and deeply considering the arguments on both sides, it was his final judgment, that the pretensions of that noble person to the Scottish crown must be set aside, and that he could take nothing in the competition with Baliol. The great drama, however, was not yet concluded; for the king having ordered the claims of Baliol, and the other competitors which were only postponed, to be further heard, Bruce declared, that he meant to prosecute his right, and to present a claim for the whole or a part of the kingdom of Scotland, under a different form from what he had already followed. Upon this, John de Hastings, the descendant of the third daughter of David earl of Huntingdon, stood up, and affirmed that the kingdom of Scotland was partible; and ought, according to the established laws of England as to partible fiefs, to be divided equally amongst the descendants of the three daughters. This plea was founded upon an opinion of one of the French lawyers, whom Edward had consulted; and Hastings had no sooner concluded, than Bruce again presented himself, and, adopting the argument of Hastings, claimed a third part of Scotland, reserving always to Baliol, as descended from the eldest sister, the name of king, and the royal dignity. Edward then put the question to his council, "Is the kingdom of Scotland divisible; or, if not, are its escheats or its revenues divisible V The council answered, "That neither could be divided." Upon which the king, after having taken a few days more to re-examine diligently, with the assistance of his council, the whole of the petitions, appointed the last meeting for the hearing of the cause to be held in the castle of Berwick, on the 17th of November.