Page:Dictionary of National Biography volume 03.djvu/74

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baronies, and other indivisible inheritances. Bruce and Baliol now gave in their pleadings. The former rested his claim (1) on a declaration of Alexander II in his favour at a time when he had no issue; (2) on the law of nature, which he alleged preferred the nearer in degree as heir; (3) on certain precedents derived from the Celtic law of tanistry, by which the brother had been preferred to the son as nearer in degree in the succession to the Scottish crown; (4) on similar instances in other countries, where the direct line of descent had been passed over; and (6) on the impossibility of succession through a female, as Baliol's claim was based on the right of his mother, Devorguila. To these arguments Baliol answered (1) that Alexander's declaration was only in the event of his having no issue, an event which had not occurred; (2) that the feudal law and not the law of nature was applicable; (3) that the cases in which a brother had been preferred to a son were inapplicable, for a son was nearer to his father than his father's brother, so that these cases told the other way, and were precedents for preferring the more remote degree; (4) that whatever might be the law in other countries, the feudal law of England and Scotland recognised representation in the elder line in succession to earldoms and baronies; and (5) that the argument against descent through females was equally adverse to the claim of Bruce, who also claimed through his mother.

The commissioners decided in Baliol's favour, declaring 'that by the laws and usages of both kingdoms in every heritable succession the more remote by one degree lineally descended from the eldest sister was preferable to the nearer in degree issuing from the second sister,' and on 6 Nov. Edward confirmed their decision.

A question which had been nominally reserved, whether the kingdom was partible, was now taken up, and decided in the negative, and on 17 Nov. 1292 the final judgment was pronounced: 'As it is admitted that the kingdom of Scotland is indivisible, and as the king of England must judge the rights of his own subjects according to the laws and usages of the kingdom over which he reigns, and as by those of England and Scotland in the succession to indivisible heritage the more remote in degree of the first line of descent is preferable to the nearer in degree of the second, therefore it is decreed that John Baliol shall have seisin of the kingdom of Scotland.'

Two days later the seal used by the regents was broken, and they were ordered to give seisin to Baliol. On 20 Nov. he swore fealty to Edward at Norham upon Scottish ground, on the 30th he was crowned at Scone, and within a month, on 26 Dec., he did homage to Edward at Newcastle.

There is no reason to doubt the justice of the decision between the competitors; and if the rules of descent were uncertain in such a case before, this solemn decision, after careful argument, aided in fixing the principle of representation and the preference for the senior line of descent. But the acknowledgment of Edward's title as superior, which the necessities of the case had wrung from the competitors and the barons, was a different matter. It was attempted to be supported by returns obtained from the English monasteries and religious houses of precedents dating back to Saxon times of a similar recognition; but no returns were sought from Scotland, while those received were evidently prepared to suit the wishes of Edward. The earlier precedents from Saxon times and from the reigns of Canute, William the Conqueror, and Rufus were instances of isolated conquests of brief duration and doubtful extent. No mention is made of the more recent points in the long-protracted controversy, the surrender of all such claim by Richard Cœur de Lion in the treaty of Canterbury, or the treaty of Salisbury, by which Edward himself had acknowledged the independence of Scotland, or the refusal of Alexander III to do homage. A further consequence of the recognition of Edward's title as superior, which had apparently not been foreseen by Baliol, but can scarcely have been overlooked by the astute feudal lawyers who counselled Edward, or by that monarch, was soon brought to light. As Edward was superior, an appeal lay from the court of his vassal Baliol to his own court at Westminster. Within six months after the decision in favour of Baliol a burgess of Berwick, Roger Bartholomew, presented such an appeal. Baliol in vain referred to the clause of the treaty of Salisbury, by which no Scotch cause was to be heard out of Scotland, and he was compelled to make an implicit surrender of the right to independent jurisdiction. Shortly after he was himself summoned in a suit at the instance of Macduff, earl of Fife, to appear before the judges at Westminster, and declining to attend he was condemned for contumacy in October 1293, and it was ordered that three of his castles should be seized to enforce the judgment. He again yielded, and promised to appear at the next English parliament to answer in the suit. He accordingly attended the parliament held in London in May 1294, but either quitted it suddenly to avoid being compelled to take