Robert the Bruce, King of Scots, page 4
They could have reminded him that though by the Treaty of Falaise between Henry II of England and King William I ‘the Lion’ of Scotland, King William had agreed in 1174 to accept the overlordship of England in order to be released from captivity, this treaty had been abrogated by Richard I, Coeur de Lion, in 1189, and that when Alexander III, on Edward I’s accession to the English throne in 1278, did homage to him for his English lands, he stated categorically, ‘I become your man for the lands which I hold of you in the Kingdom of England for which I owe you homage, saving my Kingdom. To homage for my Kingdom of Scotland no-one has any right but God alone, nor do I hold it of any but of God.’
But guided almost certainly by Bishop Wishart of Glasgow, that continuing champion of Scottish freedom, they went straight to the vital point: that they could not answer for a future king of Scotland. In a memorable letter, ‘in the name of the community of Scotland’, delivered to King Edward at the end of May, they wrote, after a courteous preamble referring to his claim to suzerainty:
Sire, to this the good men who have sent us here say that they know full well that you would not make so great a demand if you did not believe that you had good right to it: yet of any such right or demand made or used by yourself or your ancestors they know nothing. They answer, with such authority as they possess, that they have no power to reply in the absence of a ruler over them to whom such a demand should be addressed and who could reply to it. For even if they did reply it would not increase your right nor take away from the right of their liege lord. But the good men of the Kingdom are willing that whoever shall be King shall perform to you whatever right and law require, for he and no-one else will have the power to do this. Meanwhile they can only refer to the oath they took after the death of the late King, saving your faith and theirs and to the treaty confirmed in your presence at Northampton.10
Brushing aside this petition as containing nothing to the purpose (nihil tamen efficax),11 Edward demanded that as his title was disputed by none his overlordship should be recognized by all.
The Scots were in a helpless situation. Edward lay on their borders with a formidable army at his command. Their country had been so long at peace that it was ungeared for war. The natural military leaders were bitterly divided by the empty throne. They had no alternative but acceptance or annihilation. Nine conferences were held between 2 and 13 June, but the upshot was that all the claimants to the Crown swore to the King in person and then publicly repeated their oaths before the assembled lords that they accepted King Edward I as their feudal superior with lawful right to decide their case;12 and shortly afterwards the guardians of Scotland and the magnates of the realm agreed to hand over to him the custody of their country and its castles in exchange for his solemn promise that within two months of his award he would restore them to him ‘who shall gain the right, by judgement, of royalty’, and that on the death of a Scots king he would demand nothing but homage and the rights incidental to it.13
With Scotland in the hollow of his hand, Edward acted with calculated promptitude: on 13 June 1291 on the green at Upsettlington, a little village on the Scottish side of the Tweed opposite Norham Castle, he received the fealty of the guardians and the magnates there present. The four guardians resigned into his hands the office which they had received from ‘the community of Scotland’ and were reappointed ‘by the most serene prince, by God’s grace illustrious King of England, superior Lord of Scotland’, with the addition of a fifth guardian, an English baron, Brian FitzAlan of Bedale. A new chancellor was installed with an Englishman as his colleague. The constables of the Scottish castles resigned their charges and were reappointed as his sworn liege men.
Then, setting out from Upsettlington, he made a ceremonial progress by way of Haddington, Edinburgh and Linlithgow to Stirling. At Stirling he issued a proclamation that by 27 July, on pain of severe penalties, all men of substance throughout the kingdom should swear fealty to him in person or to representatives appointed by him for that purpose. He returned by Dumfermline, St Andrews and Perth with abbots and priors, barons and knights, freemen and burghers coming to kneel before him, and arrived in Berwick in time to open on 3 August the preliminary hearings of the great court case for the throne of Scotland. All this with such speed and panache that any resistance by unwilling Scots had no time to consolidate.
The great court case was to become a showpiece trial by which not only Scotland and England but all Europe were to be made aware with what detailed care and respect for legal opinion the matter was conducted. It was indeed a splendid façade.
The court was composed of 104 auditors: twenty-four from Edward’s council, forty nominated by Robert the Competitor, and forty nominated by John Balliol. By the very nature of these appointments it was clear that attention would be concentrated on the pleas of the two principal rivals and that the claims of the other candidates were regarded as unsubstantial. Nevertheless, on 3 August all the competitors appeared before the King and lodged their petitions, each tracing his descent in detail from the royal ancestor through whom he made his claim. These petitions were sewn up in a leather bag, sealed with the seals of the Bishops of Glasgow and St Andrews and the Earls of Buchan and Mar, and then deposited in Berwick castle.14 Thereupon King Edward, who had urgent business in England, adjourned the hearing until 2 June 1292. On that date the court reassembled and was adjourned once more until 14 October. Meanwhile copies of the pedigrees had been sent to France to be considered by some of the greatest law scholars in Europe.
The auditors began by debating the pleas of Bruce and Balliol before entering on the claims at large. Both were descended from David, Earl of Huntingdon, brother of King William I the Lion, whose stock had ended with the Maid of Norway. David had left no sons behind him. His heirs were three daughters whose living representatives were: a grandson of the eldest daughter, John Balliol, a son of the second daughter, Robert the Competitor, and a grandson of the third daughter, John Hastings, Lord of Abergavenny.
John Balliol claimed the throne as representative of the senior branch, Robert the Competitor as being the nearer descendant with the further arguments that he had been nominated as heir by Alexander II when that king was childless and that he had the support of the seven earls who, by ancient right and tradition, had the power to elect a king.
The scales of justice could be weighted either way by adequate precedents. The Frenchman Bonet, the supreme authority at that time of canon law, gave as his opinion that the succession ought to go to the claimant who was born first even though he was descended from the younger line,15 and the Master General of the Franciscans came to the same conclusion not on this ground but as nearer in degree, citing from the Bible the unexpected precedent of the daughters of Zelophehad.16
On the other hand, the principle of primogeniture, although not yet established, was gradually gaining acceptance. King Edward at first inclined to Bruce and said so in private. But Antony Bek, the shrewd Bishop of Durham, as Fordun reports, posed him his question: ‘If Robert of Bruce were King of Scotland, where would Edward King of England be? For this Robert is of the noblest stock of all England and together with him the kingdom of Scotland is very strong in itself and in times gone by a great deal of mischief has been wrought to the Kings of England by those of Scotland.’ At this the King, patting him on the head – as it were – answered in the French tongue, ‘Par le sank Dieu vous avez bun chanté’, which is to say, ‘By Christ’s blood thou hast sung well. Things shall go otherwise than I arranged at first.’17
The Scottish auditors, being unable to agree by what laws and customs the right of succession should be determined, referred the matter to those auditors appointed by the King. Each of these auditors in turn was interrogated by none less than the King himself. Aware by now of his wishes and that as recently as April 1290 he had defined the rules of succession for the kingdom of England by seniority, they gave him the agreeable answer that judgement should be given by the laws and customs of England, and that as between the nearer descendant of the younger daughter and the more remote descendant of the elder daughter, the progeny of the elder daughter must be exhausted before that of the younger had any claim.
On 6 November Bruce was informed that on the pleadings presented he had failed to make out his case. On 7 November, by a document now in the British Museum, sealed by Bruce and Gilbert de Clare, Earl of Gloucester, he delegated his claim to the throne to his son, the Earl of Carrick, and his heirs. Two days later the Earl of Carrick, whose wife had died earlier in the year, resigned his earldom to his own son and heir, the eighteen-year-old Robert Bruce, the future king.18 Whatever the outcome of the court case, the Bruces were determined that their claim should remain on record.
They made two further attempts to prevent the elevation of John Balliol. On 14 June 1292 Bruce the Competitor had entered into an agreement with the Count of Holland that if either should win the Crown he would hand over to the other as his fief a third part of the kingdom. The Count of Holland now came forward with the unlikely story that David, Earl of Huntingdon, on behalf of himself and his heirs, had resigned the rights to the Scottish throne in exchange for a grant of land at Garioch in northeast Scotland and that in consequence his stock was disbarred, whereas the Count was in direct descent from Ada, the sister of King William the Lion, and entitled to the throne.19 However, whether bribed by Balliol, as his fellow Dutchmen believed, or not, after a short debate he withdrew his plea. Finally, the Bruces threw their weight behind the claim of John Hastings that Scotland was held of the king as any other fief under common law and was therefore divisible between the three descendants of Earl David and that in consequence they were entitled to a third share of the income and land.20
But the court had come to its decision. On 17 November 1292, in the great hall at Berwick, the King’s judgement was read to the crowded assembly by his chief justice, Roger le Brabazon. Of the thirteen competitors seven had withdrawn their claims and three had been dismissed for want of prosecution. In regard to the remaining three, the King pronounced that the kingdom of Scotland was indivisible, which cut out John Hastings, that the senior branch of Earl David’s stock had precedence over the junior, which cut out the heirs of Robert the Competitor, and that John Balliol was heir at law to the vacant throne.21
It was at this stage that, according to Fordun:
The Earl of Gloucester, holding Robert the Bruce by the hand, in the sight of all, spoke thus to the King: ‘Recollect Ο King what kind of judgement thou hast given today and know that thou must be judged at the last’, and straightaway at the Earl’s bidding the aforesaid Robert Bruce withdrew, nor did he ever tender homage or fealty to John of Balliol.22
The great court case was over; but on the mind of the young Robert Bruce, now Earl of Carrick, who had listened to the many family conclaves during the years which had followed the death of Alexander III, was deeply imprinted the conviction that an injustice had been done and that his grandfather was the rightful king of Scots.
Formalities now followed each other pell-mell. On 19 November the constables of those Scottish castles previously placed in Edward’s hands were ordered to surrender them to John Balliol, and the guardians of Scotland to hand over the realm. The great seal they had used was broken in four and the fragments sent to the English treasury and a fresh seal was cut for the new king.23
On 20 November John Balliol swore fealty for his kingdom as held of his superior lord.24 On 30 November he was crowned at Scone by John St John as deputy for the infant Earl of Fife,25 whose family held the hereditary right of crowning the monarch and on 26 December, in his capacity as invested king, he once more rendered homage to his lord superior: as complete a vassal king as the documents of English jurists could make him.26
John Balliol was King of Scotland but this unfortunate man, pilloried to posterity as Toom Tabard, the Empty Jacket, derived few benefits from his royal status.
There was little of Scots about him. He was a native of Picardy with vast possessions in France. He was married to the daughter of John de Warenne, Earl of Surrey, one of King Edward’s leading military commanders, and had substantial landed interests in England. His only direct link with Scotland was his recent inheritance of the wild and unruly domain of Galloway and the fact that his sister was married to a former guardian, John Comyn of Badenoch, head of the ‘Red’ Comyns, the senior branch of a baronial family which vied with the Bruces as the most powerful influence in Scotland. A savage little vignette appears in the contemporary Rishanger Chronicle:
John [Balliol] hurried to Scotland glittering in his crown. But the Scots consenting or not received him with extreme annoyance. They dismissed his attendants, familiar to him and of his own race, and deputed strangers to act as his administrators … But he, simple and stupid, almost mute and speechless … did not open his mouth … Thus he dwelt among them for a whole year, as a lamb among wolves.27
Within a week of his enthronement this meek lamb experienced both the perfidy and pressure of his superior lord. A burgess of Berwick who had lost his triple law suit in the court of the Scottish guardians appealed to the King of England against their decision. There is suspicion of prearrangement about this action, for contrary to the usual law’s delays, Edward had called in the record of the proceedings to his own court within the next fortnight and reversed one of the judgements.
Immediately Fraser, Bishop of St Andrews, John Comyn, Earl of Buchan, Patrick Graham and other supporters of Balliol lodged a petition in the name of King John that Edward should keep to the promise he had made in Northampton in August 1290 and reiterated at Norham in June 1291 that he would preserve the laws and customs of Scotland and should abide by the solemn agreement he had signed in the Treaty of Birgham that no Scottish lawsuit should be dealt with outside the kingdom.
To this Edward roundly replied that any promises, concessions or ratifications made during the interregnum, when the throne of Scotland was vacant, were ‘for the time being’ only and that henceforward nothing ever placed on parchment should keep him from hearing appeals from Scotland and that he would cite King John himself to appear before him if he so thought fit.28 So much for the integrity of a monarch who, on his gravestone, had engraved by a piece of prodigious irony pactum servo – I keep my word. He followed up his outburst by extracting from the Scottish King on 2 January 1293 two instruments, one in Latin, one in French, by which the Treaty of Birgham was declared ‘null and void’ and Edward was released from ‘every article, concession or promise’ therein contained.29
Nothing could more clearly demonstrate to the Scots what Edward understood by homage and the rights that appertained and they writhed in impotence.
But worse humiliation was to follow. King Edward had a set of standing orders drawn up by his lawyers for the hearing of Scottish appeals of a character unheard of in the history of appellate justice. By these rules the King of Scotland in person was required to attend in England the hearings of every appeal against him and if the English court adjudged a miscarriage of justice, he was to be held personally liable for damages, both to the appellant and to his lord superior.
The climax of this measured harassment was reached in October 1293 when King John was summoned to appear in person before the English parliament to hear an appeal against him by John Macduff, younger son of Malcolm, Earl of Fife. On presenting himself as requested, he was treated with deliberate discourtesy and made to stand at the bar like a private malefactor. Stiffened before the ordeal by his councillors, he showed at first a commendable firmness. He refused to answer to the charge on the grounds that he was King of Scotland and dared not nor was able to act in any matter affecting his kingdom without the advice of the good men of his realm, nor could he ask for any adjournment for that would imply that he recognized the jurisdiction of those before whom he was cited.30
The court thereupon declared that he was guilty of extreme contempt in that it was directed against the sovereign who had conferred upon him the dignity of the Crown, and that for this contumacy he should not only pay damages to the appellant but should also hand over to the King of England the three principal castles in his realm together with their attendant towns until he had purged his contempt. At this King John’s nerve failed him. Browbeaten by Edward and insulted by Parliament, he stood firm no longer. Before the court’s resolution could be passed into a decree, he submitted a humble petition to his lord superior, craving that time should be given him to consult his subjects and promising to report the result to the first Parliament after Easter. King Edward thereupon adjourned the next hearing to 14 June 1294. But as in the inexorable progress of a Greek tragedy, pride is followed by retribution, so now it happened to Edward.
Philip the Fair of France had observed the arbitrary manner in which Edward had treated the Scots as a prerogative of his overlordship. With ironic malice he decided to follow his example. Edward, in his capacity of Duke of Aquitaine, owed him fealty. Claiming that English seamen had attacked French ships without provocation, he cited Edward to appear in person before the parliament in Paris and there submit to the judgement of his lord superior. When Edward failed to attend, King Philip came down into the parliament, pronounced him contumacious and on 19 May 1294 seized his lands in Gascony as forfeit. On 24 June Edward retaliated by renouncing his homage as duke and despatched a formal declaration of war.
The opportunity had now come for those smarting under his subjection to regain their independence. In September 1294, on the very eve of the Edward’s departure from Portsmouth with his assembled forces for Gascony, the Welsh rose in revolt and compelled him to turn away from the expedition on which he had based his hopes of recovering his duchy.
By May 1295 he had crushed the Welsh rebellion but in the meantime the Scots, having lost all confidence in King John, had elected four bishops, four earls and four barons to manage the government of the country in his name,31 and had sent commissioners to negotiate an alliance with France. On 23 October 1295 an offensive and defensive league was concluded between the two countries and this was ratified by the Scottish parliament in February 1296.32
