There was now only the life of an infant female, residing in a distant land, between him and his plausible claim to the Scottish crown. He was nominated one of the negotiators for settling the marriage between her and the son of Edward I., which, if it had taken place, would have entirely changed the history of the island of Great Britain. From his intimate knowledge both of Scotland and England, it is probable that the “Articles” were chiefly of his framing, and it must be allowed that they are just and equitable. For his own interest, as well as for the independence of his native country, he took care to stipulate that, “failing Margaret and her issue, the kingdom of Scotland should return to the nearest heirs, to whom of right it ought to return, wholly, freely, absolutely, and without any subjection.”
The Maid of Norway having died on her voyage home, the ex-chief justice immediately appeared at Perth with a formidable retinue, and was in hopes of being immediately crowned king at Scone; – and he had nearly accomplished his object, for John Baliol, his most formidable competitor in point of right, always feeble and remiss in action, was absent in England. But, from the vain wish to prevent future disputes by a solemn decision of the controversy after all parties should have been heard, the Scotch nobility in an evil hour agreed to refer it, according to the fashion of the age, to the arbitration of a neighboring sovereign, and fixed upon Edward I. of England, their wily neighbor. The Scottish nobles being induced to cross the River Tweed, and to assemble in the presence of Edward, under pretence that he was to act only as arbitrator, Sir Roger de Brabacon by his order addressed them in French, (the language then spoken by the upper classes both in Scotland and England,) disclosing the alarming pretensions about to be set up.
A public notary and witnesses were in attendance, and in their presence the assumed vassals were formally called upon to do homage to Edward as their suzerain, of which a record was to be made for a lasting memorial. The Scots saw too late the imprudence of which they had been guilty in choosing such a crafty and powerful arbitrator. For the present they refused the required recognition, saying that “they must have time for deliberation, and to consult the absent members of their different orders.” Brabacon, after advising with the king, consented that they should have time until the following day, and no longer. They insisted on further delay, and showed such a determined spirit of resistance, that their request was granted and the first day of June following was fixed for the ceremony of the recognition. Brabacon allowed them to depart; and a copy of his paper, containing the proofs of the alleged superiority and direct dominion of the English kings over Scotland, was put into their hands. He then returned to the south, where his presence was required to assist in the administration of justice, leaving the Chancellor Burnel to complete the transaction. Although the body of the Scottish nobles, as well as the body of the Scottish people, would resolutely have withstood the demand, the competitors for the throne, in the hopes of gaining Edward’s favor, successively acknowledged him as their liege lord, and their example was followed by almost the whole of those who then constituted the Scottish Parliament.26
Bruce afterwards pleaded his own cause with great dexterity, and many supposed that he would succeed. Upon the doctrine of representation, which is familiar to us, Baliol seems clearly to have the better claim, as he was descended from the eldest daughter of the Earl of Huntingdon: but Bruce was one degree nearer the common stock; and this doctrine, which was not then firmly established, had never been applied to the descent of the crown.
When Edward I. determined in favor of Baliol, influenced probably less by the arguments in his favor than by the consideration that from the weakness of his character he was likely to be a more submissive vassal, Robert de Brus complained bitterly that he was wronged, and resolutely refused to acknowledge the title of his rival. He retired in disgust to his castle of Lochmaben, where he died in November, 1295. While resident in England, he had married Isabel, daughter of Gilbert de Clare, Earl of Gloucester, by whom he had several sons. Robert, the son of Robert the eldest, became Robert I. of Scotland, and one of the greatest of heroes.
When judgment had been given in favor of Baliol, Brabacon was still employed to assist in the plan which had been formed to bring Scotland into entire subjection. There being a meeting at Newcastle of the nobles of the two nations, when the feudatory king did homage to his liege lord, complaint was made by Roger Bartholomew, a burgess of Berwick, that certain English judges had been deputed to exercise jurisdiction on the north bank of the Tweed. Edward referred the matter to Brabacon and other commissioners, commanding them to do justice according to the laws and customs of his kingdom. A petition was then presented to them on behalf of the King of Scotland, setting forth Edward’s promise to observe the laws and customs of that kingdom, and that pleas of things done there should not be drawn to examination elsewhere. Brabacon is reported thus to have answered: —
“This petition is unnecessary, and not to the purpose; for it is manifest, and ought to be admitted by all the prelates and barons, and commonalty of Scotland, that the king, our master, has performed all his promises to them. As to the conduct of his judges, lately deputed by him as SUPERIOR and DIRECT LORD of that kingdom, they only represent his person; he will take care that they do not transgress his authority, and on appeal to him he will see that right is done. If the king had made any temporary promises when the Scottish throne was vacant, in derogation of his just suzeraineté, by such promises he would not have been restrained or bound.”27
Encouraged by this language, Macduff, the Earl of Fife, entered an appeal in the English House of Lords against the King of Scotland; and, on the advice of Brabacon and the other judges, it was resolved that the respondent must stand at the bar as a vassal, and that, for his contumacy, three of his principal castles should be seized into the king’s hands.
Although historians who mention these events designate Brabacon as “grand justiciary,” it is quite certain that, as yet, he was merely a puisne judge; but there was a strong desire to reward him for his services, and, at last, an opportune vacancy arising, he was created chief justice of the King’s Bench.
Of his performances in this capacity we know nothing, except by the general commendation of chroniclers; for the Year Books, giving a regular account of judicial decisions, do not begin till the following reign.
On the accession of Edward II., Brabacon was reappointed chief justice of the King’s Bench, and he continued very creditably to fill the office for eight years longer. He was fated to deplore the fruitless result of all his efforts to reduce Scotland to the English yoke Robert Bruce being now the independent sovereign of that kingdom, after humbling the pride of English chivalry in the battle of Bannockburn.28
At last, the infirmities of age unfitting Brabacon for the discharge of judicial duties, he resigned his gown; but, to do him honor, he was sworn a member of the Privy Council, and he continued to be treated with the highest respect till his death, which happened about two years afterwards.
CHAPTER II.
ROBERT TRESILIAN
We next come to a chief justice who actually suffered the last penalty of the law – and deservedly – in the regular administration of retributive justice – Sir Robert Tresilian – hanged at Tyburn.
I can find nothing respecting his origin or education, except a doubtful statement that he was of a Cornish family, and that he was elected a fellow of Exeter College, Oxford, in 1354. The earliest authentic notice of him is at the commencement of the reign of Richard II., when he was made a serjeant at law, and appointed a puisne judge of the Court of King’s Bench. The probability is, that he had raised himself from obscurity by a mixture of good and evil arts. He showed learning and diligence in