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Who should now succeed Margaret on the Scottish throne? Fordun relates that Malcolm, the first 'rex Scotiae,' decreed a change in the principle of succession. This enactment is said to have provided that thenceforth each king should be succeeded by whoever was, at the time being, the next descendant; that is, a son or a daughter, a nephew or a niece, the nearest then living. It is not at all unlikely that the disturbance of the balance of the kingdom by the acquisition of Lothian may have rendered the substitution of the Teutonic for the Keltic law of succession expedient, or even necessary. The claims of Balliol and Bruce alone need to be considered; and if this law was formally established, the letter of it would be a strong support to Bruce's candidature, whatever the spirit of its intention. For the present purpose, however, we are not concerned with the validity of the claims of either competitor, but mainly with the process whereby the final decision was reached. The essential point is to discern the real spirit governing the evolution of events.

The death of Margaret at once urged the competitors to fresh activity. The Guardians were divided in their sympathies, and the division no doubt ran deep into the community. The first overt movement, so far as existing documents indicate, was made by Bruce. It was an indirect, tentative operation. Towards the end of the year (1290), an appeal was preferred to Edward by 'the seven earls' and the community of the realm of Scotland against the Bishop of St. Andrews and Sir John Comyn in respect of their action as Guardians. The appellants asserted their privilege of placing the King of Scotland on the throne, complained of acts of oppression exercised by the Guardians on Donald Earl of Mar and the freemen of Moray, narrated the recognition of Robert Bruce of Annandale as next heir to the throne by Alexander II., and alleged some minor grievances. At this time there were only four Guardians, the Earl of Fife having been murdered and the Earl of Buchan having died; and the two not inculpated, the Steward of Scotland and the Bishop of Glasgow, were fast friends of Bruce. Mar and Moray also leant to Bruce's faction. Evidently the appeal was promoted in the interests of Bruce, and with his knowledge, if not positively at his instigation. There is no record of any answer.

There is a glimpse of still earlier action by Bruce in the letter of the Bishop of St. Andrews to Edward, reporting the rumour of the Queen's death. The rumour arrived when the Estates were sitting to receive Edward's answer to the refusal to surrender the castles to him. Bruce, the Bishop says, had not intended to be present, but, on hearing the rumour, had appeared with a strong following. His ultimate intentions the Bishop could not tell. Then follows a significant point. Should it unhappily prove true that the Queen is dead, the Bishop urges Edward to come to the marches without delay, with the view of preventing bloodshed, and of aiding the faithful of the land to place on the throne the man that possesses the proper title—meaning, of course, Balliol. To interpret the Bishop as merely currying favour with the King is probably a large stretch of charity. He certainly stood in a small minority in desiring Edward's intervention. The chroniclers, indeed, relate how the community of the realm, impressed by the ancient friendship between the two kingdoms and the particular cordiality of Alexander III. and Edward, invited the English King to arbitrate on the claims of the competitors. But no such invitation is traceable in the records, and, on that ground alone, apart from the strong probabilities, it may safely be believed that such an invitation was never sent. There was not the least occasion for it, on either side. It certainly would not have represented the true feeling of the community of Scotland; and no doubt Edward was fully aware of the fact, for, in the whole transaction, he studiously treated that body with very scant regard.

The Waverley Annalist states that in March 1291, on the day after Ascension, Edward declared to his nobles, in the presence of nine of the competitors, who at the same time submitted their claims to him, that he was resolved to subdue Scotland as he had recently subdued Wales. But Edward was now on the peaceful tack of legal process. The competitors, though mostly great Scots nobles, were also mostly the liegemen of Edward for large possessions in England; and not one of them could dare to claim the throne of Scotland without regard to Edward's opinion. It was quite inevitable that every one of them should submit to his judgment. Besides their material interests in England, they were of Norman descent and of Norman upbringing and Norman sympathies, and thus they were largely alien to the mass of the Scottish population. Their interest in Scotland was little, if anything, more than a matter of land and lordship. They were quite content to take the kingdom of Scotland as a bigger fief. It was therefore the most natural thing in the world for them to leave the decision of the case in the hands of their liege lord, the King of England. For the community of Scotland the question wore a wholly different aspect.

Edward had taken good care not to allow the matter to slumber through the winter. He had sent forth his commands to all the religious houses of the land, requiring them to search diligently in their chronicles, and to transmit to him speedily extracts of all such passages as might bear on the relations of England and Scotland. Such of these extracts as had come to hand, he caused to be recited before his Parliament assembled at Norham on May 10. By the mouth of his Justiciary, Sir Roger le Brabazon, he set forth his solicitude for the peace of Scotland and his anxiety to do justice to all, and required the Scots prelates and nobles to recognise his superiority and direct lordship—a claim affirmed to be 'clear, from chronicles found in different monasteries and other places in England and Scotland, from other sources of information, from certain documents, and on most evident reasons.' The Scots nobles present, although previously informed of Edward's intentions, represented their inability to reply without further consultation with nobles and others not then present. The meeting was adjourned till next day, when Bishop Bek, not Edward personally, announced that they might take three weeks, at the end of which time they would be expected to produce any evidence they might be able to find against the King's claim of superiority.

Meantime the returns from the religious houses continued to pour in. The Scots nobles also must have exhibited anxiety for the independence of Scotland; for on May 31 Edward made them a declaration that the coming of the magnates and the Community of Scotland to Norham should not be drawn into a precedent in prejudice of the liberties of the realm. Then, on June 2, the Scots nobles assembled on Upsetlington Green—Holywell Haugh—on the north side of the Tweed, opposite to Norham Castle. The Bishop of Bath and Wells, Chancellor of England, with the usual preliminary flourish about the gracious feelings and intentions of Edward, informed them that the Kings of England from the remotest times had held the over-lordship of Scotland. They themselves, he pointed out, had not even now brought forward any evidence in disproof of Edward's claim. Edward, therefore, in the exercise of his right, would proceed to investigate and decide the rights of the claimants. Eight of these, who were present, formally acknowledged Edward's supremacy.

Next day the proceedings were resumed on the English side of the Tweed, in the parish church of Norham. Balliol, who had been absent on the previous day, now made his acknowledgment. The Bishop of Bath and Wells advanced Edward's pretensions another step; he explained that Edward did not construe the possession and exercise of his right of over-lordship as excluding his hereditary right of lordship. Then, as to the mode of proceeding towards the determination of the claims of the competitors, Edward suggested that the chief claimants, Balliol and Bruce, should each, on behalf of themselves and such other competitors as should agree, nominate forty arbiters or auditors, the King himself being content to nominate twenty-four, more or less, to hear the evidence and to report to him, whereupon he would give his decision. The one hundred and four arbiters were appointed accordingly on July 5; and next day they fixed the hearing to take place at Berwick, the King himself appointing August 2 as the date.

The 11th of June had been a memorable day. The Guardians formally resigned the kingdom and its castles to Edward as over-lord. The Bishop of Caithness, on the nomination of the Scots nobles, was appointed by Edward Chancellor of Scotland; and with him was associated the King's own clerk, Sir Walter de Amundesham (Amersham), who was presently (August 18) succeeded by Adam de Botingdon. Two days later, Sir Brian Fitz Alan was associated with the Guardians in Edward's interest; the first batch of Scots prelates and barons swore fealty on the Holy Evangels; and Edward, 'as over-lord of Scotland,' ordered the governors of castles in Scotland to deliver them over to governors of his own appointment, the common consent of the Scots Guardians and of the competitors being recorded; and Edward, as over-lord, proclaimed his peace. On June 17 a general order was issued that all freeholders should swear fealty to Edward. The terms of the ordinance as to homage and fealty, which had been settled on June 12 at Norham by Edward 'with the advice of the prelates and magnates of Scotland there present,' were comprehensive and precise. They applied to 'all, both clerical and lay, who would have been bound to make homage and fealty to a living king of Scotland.' All that came were to be admitted; those that came and refused were to be arrested till performance; those that did not come, but excused themselves for good reason, were to be allowed till next Parliament; those that neither came nor excused themselves were to be 'more straitly distrained' till they conformed. Thus, to all appearance, Edward held Scotland in the grip of his iron hand—the reward of a patient diplomacy.

The great process was resumed on August 3 at Berwick. The competitors, now increased to twelve, presented their claims in technical form before the hundred and four auditors. The first object was to decide the point of law at issue between Balliol and Bruce, namely, whether the nearer descendant by the younger child or the more remote descendant by the elder child had the preferable title. 'Perhaps,' as Burton says, 'the policy of the arrangement lay in this, that in Bruce and Balliol, and those they might bring with them, the Lord Superior knew whom he had to deal with personally; among a set of miscellaneous strangers, bringing their friends and supporters into the controversy, he might find troublesome people.' The question, if in some sense 'a by-question between two claimants,' nevertheless went to the root of the claims of the two competitors that were obviously first in the running. The proceedings went on, without getting much farther forward, till August 12, when Edward adjourned the sittings to June 2, 1292.

It had been alleged that some document founded upon by the Count of Holland was missing, and this gave the King a welcome opportunity of further demonstrating his resolution to do justice to the last iota. On this 12th of August he appointed certain commissioners to examine all documents presented by suitors or 'in any way touching us and our kingdom,' whether in Edinburgh Castle or elsewhere in Scotland. Under the order many papers were carried away and deposited in Berwick Castle. It does not appear that anything of importance or of immediate relevance was discovered. Certainly Edward found nothing to support his claim of over-lordship, otherwise he would have utilised it, and had it carefully recorded. Whatever his real intention in directing the search, his subsequent dealings with Scotland gave colour—and probably quite false colour—to later allegations charging him with the express purpose of wantonly destroying the national records. During the next five or six days (August 13–18), Edward manifested his satisfaction with events in a manner peculiarly pleasing to some half-dozen Scots magnates. There remains a record of certain grants he made to the Bishop of Glasgow, James Steward of Scotland, Earl Patrick of Dunbar, Sir John de Soulis, Sir William de St. Clair, Sir Patrick de Graham, and Sir William de Soulis. These grants are expressed to be made for various expenditure, and 'also for the zeal' the grantee 'had and has to promote peace and tranquillity among the people' of Scotland. The record, however, is cancelled in the Rolls, for the very sufficient reason that the particular grants were not made after all, equivalents being given instead. Every reader may make his own comment.

While English counsels ruled the policy of the Guardians, and English castellans stretched their mailed hands over Scotland from the strongholds, the great cause dragged on. At length, June 2, 1292, came round, and Edward resumed the process at Berwick. A thirteenth competitor now presented himself—Eric, King of Norway. Edward professed anxiety to reach a decision, for was he not moved by the sore desolation of Scotland? Still the contest surged about the claims of Bruce and Balliol. How to arrive at the right decision? The Scots auditors would greatly assist the King to expedite matters if they would inform him on what laws and customs he is to proceed. The Scots auditors are helpless to decide without further consideration and advice; perhaps the English auditors would aid them? The English auditors join in consultation, but they shrink from answering without further and more precise advice, which they might perhaps obtain from the prelates and nobles of England. Apparently, then, there must be a further adjournment. Edward accordingly fixed October 14 for next meeting, and stated that in the meantime he and the rest of the parties interested would take the best advice to be found anywhere in the two kingdoms.

It is not relevant to the present purpose to pursue the arguments of the October meeting. On the 15th the case was closed, no doubt after private diplomatic dealing with the competitors. On November 17, Edward announced his decision in great state in the hall of Berwick Castle—in favour of Balliol. Thereupon he issued orders to the Guardians to deliver seisin of the kingdom to the new King, and to the castellans of the twenty-three chief strongholds to deliver them over to Balliol or his representatives. On the 20th, Balliol swore fealty to Edward at Norham; on the 30th he was enthroned at Scone; then he went back to Newcastle-on-Tyne, and, having eaten his Christmas dinner with his over-lord, did homage to him next morning as an invested King. On January 2, by letters patent, sealed by Balliol, by two great prelates, and by ten of the principal nobles of Scotland, Edward was acquitted of all obligations incurred by him while the country was in his hands; and two days later he acknowledged that his rights in Scotland were limited to homage and its pertinents. Some special favours of a pecuniary nature within the next few months intimate Edward's satisfaction with his royal henchman. But these marks of the over-lord's pleasure were far from counterbalancing the dissatisfaction openly and ominously manifested in his kingdom of Scotland.

Two or three points in this prolonged process invite particular remark. In the first place, as Burton justly points out,

'What confers a strange interest on the selfish squabble and the array of technicalities and pleadings called out by it, is that there is no more allusion to the rights of the Community of Scotland, or the way in which a decision may affect them, than there need be in any private litigation. They have no more place in the question than the tenants on an estate while the settlements are disputed. So far as one can gather from the terms of the documents, it never seems to have occurred to the greedy litigants themselves or their astute technical advisers, that there was a fierce self-willed people, nourished in independence and national pride, who must be bent or broken before the subtleties and pedantries of the Lord Superior's court would be of any avail. Totally unconscious they seem also to have been that the intricate technicalities which dealt with a sovereign independent State as a mere piece of property in search of an owner, formed an insult never to be forgiven, whatever might be the cost of repudiation and vengeance.'

Edward himself, however, was gifted with a deeper insight than all the rest. He at least was thoroughly aware of the deeper elements of the problem, and of their difficult character. At the Upsetlington meeting, while the prelates and nobles had nothing to urge against Edward's claims—for Wyntoun's record of the Bishop of Glasgow's bold denial of the pretended right of superiority must be held in suspense—the 'Community' of Scotland undoubtedly presented a protest. What this body had to say on the point, most unfortunately we do not know. It finds no place in the very full record of proceedings preserved in the Great Roll of Scotland. There is, however, no doubt at all that some answer was made, and that it was set aside as 'nothing to the point' (nihil efficax). But Burton's comment deserves to be carefully borne in mind. 'Transactions,' he shrewdly remarks, 'are profusely recorded, as if for the purpose of courting all inquiry into doubts or difficulties that might affect conclusions, yet one ever feels, throughout all this candour, that the truth is to be found somewhere behind, and that the abundance of punctilious record is devised to conceal it.' The exclusion of all notice of the action of the Community from the official record must be taken to have been deliberate. But it was an act of policy, not of inappreciation, on the part of the King.

There is another element in certain documents of the time that confirms this conclusion in a very striking manner. In the official record of the case, Edward is designated Lord Superior at every turn. There is a marked contrast, however, in the order he directed to each of the Scots castellans to deliver over their strongholds to English successors. 'In the preamble,' Burton points out, 'Edward does not make display of his office of Lord Superior, as in the documents which were not to go to Scotland. He is Edward, King of England, Lord of Ireland, and Duke of Guienne; and he demands delivery of the fortress by assent of the Guardians and of the several candidates, and only towards the conclusion does he briefly bring in his title of "Soveryn Seygnur."' In this order, as well as in the order as to fealty, he judiciously associates with himself the prelates and magnates of the realm of Scotland. Obviously, he exercised sleepless discretion in the pushing of his claims, with a careful eye on the possible effects in a high-spirited community.

A word may also be said on the functions of the auditors. From the record of their appointment, it would seem to be plain enough that they were intended to sit together as a single board of referees. The magnanimity of Edward and his confidence in the justice of his cause were not ignored by the English chroniclers; eighty to twenty-four manifests a generosity of fairness. But then we have already seen that the auditors did not, at any rate always, act as a single body. At a late stage of the proceedings, two questions arose: By what law should the question be tried—by the Imperial (that is, the Civil or Roman) law, or by the laws and customs of England or Scotland? Is there any specialty in rank or dignity of this kingdom of Scotland that should exempt it from being adjudicated upon like the other tenures of the realm? 'On these two questions,' says Burton, 'King Edward's own council of twenty-four were alone consulted. "Those of Scotland," as the persons selected by Bruce and Balliol were termed, had no opportunity of recording their opinion on these, which, of all the questions put, were the most eminently national in their character.' This is a somewhat startling result, in view of the expectations raised by the terms of appointment. 'Yet,' Burton proceeds, 'it was so managed that they too should appear to have had a voice. It was put to the claimants, Balliol and Bruce, and to the eighty of Scotland selected by them, whether they could show any cause why the kingdom of Scotland—a fief of the King of England—should be treated differently from earldoms, baronies, and other tenures. Under nice distinctions in the ways of putting questions, the broad fact can be distinctly traced, that the twenty-four of England were advisers or referees of the supreme judge, Edward himself, as to the judgment to be given, while the eighty of Scotland were merely the advisers of the two claimants as to the position they should take up as litigants—what they should admit, and what they should dispute. Accordingly, the eighty are not heard in answer to the questions put; the competitors, Balliol and Bruce, give the answers.' Even, however, if the apparent intention to constitute a single board of 104 had been consistently maintained, the result would have been practically the same. The Balliol and the Bruce men would have neutralised each other, and the English twenty-four would have decided every point—and that, too, inevitably in the sense conformable to the mind of the King of England. The whole process was a gigantic palaver, impressing the grandeur, the legality, and the considerateness of Edward, while utilised as a cloak and a means for the remorseless prosecution of his designs upon the independence of Scotland.

It remains to inquire briefly into the substantial validity of the claim of over-lordship. It might augur industrious adventure to penetrate to the misty age of Brute the Trojan and Scota the daughter of the King of Egypt. It would be little less futile to trace the records of the chronicles collected by Edward from the time of Edward the Elder down through four centuries. It is hardly worth while even to deal with the submission of William the Lion when he was accidentally captured in 1174, before Alnwick Castle, on a raid into the north of England. The facts have been obscured by the greater anxiety of historians to fit them in with their preconceptions than to ascertain precisely the meaning of the plain record. If the release of William's obligations by Richard for 10,000 marks, to eke out his preparations for a crusade, has any meaning at all, it means clearly the restoration of the absolute independence of Scotland. The treaty of Falaise 'created the new condition of vassal and superior from that date'; and the Canterbury transactions released William from all the engagements that Henry II. thereby 'extorted from him,' as Richard's charter phrases it, 'by new deeds and by consequence of his captivity.' The competitor that submitted to Edward that Richard could not legally release the homage of Scotland, was either praise-worthily exhaustive or hopelessly barren of argument. It seems to demand a facile credulity to believe that William gave 10,000 marks to be released from one ground of an obligation that still remained valid against him on another ground not even specified in express terms, or that Richard placidly went off to the crusade, leaving on the northern marches of England an inviting opportunity to an active and aggrieved neighbour. That William should do homage for his estates in England was a matter of course, but quite a different matter.

Henry III. appears indeed to have entertained the claim of over-lordship. There is no reference to homage, however, in connection with the treaty of Newcastle. Henry and Alexander II. simply engaged not to abet each other's enemies, and not to invade each other's territories without just provocation. Nor, when Alexander III. succeeded to the throne in 1249, at the age of seven, did Henry put forward any claim of wardship—a fact especially significant of the relations between the kingdoms. It is no doubt true that Henry prayed Pope Innocent IV. to prohibit the anointing and crowning of the child King of Scots, on the ground that Alexander was his liege vassal; for so much appears from the Pope's letter of refusal, dated 1251. But Henry does not seem to have proceeded further in the matter. It is stated that, on the occasion of Alexander's marriage with his daughter Margaret in 1252 at York, Henry demanded homage for Scotland as a fief holden of England; and that the reply of the boy King, that he could not take such an important step without the knowledge and assent of his parliament, closed the question. The reply bears evident witness to the vigilance of Alexander's advisers. The like vigilance is to be remarked in the terms of the safe-conduct of Alexander and his queen to England in 1260. Neither the King nor his attendants should be required to treat of State affairs during the visit. In fact, Henry III., whatever his theoretical claims, never exercised the right of over-lordship. On the contrary, whenever he did interfere in the affairs of Alexander's kingdom, it was in the capacity of a friendly father-in-law, and under the style of 'Principal Councillor to the illustrious King of Scotland.'

The case of 1278 is strikingly illustrative. In that year Alexander did homage to Edward I. at Westminster, and the fact is recorded in a transcript of a Close Roll in absolute terms: 'I, Alexander, King of the Scots, become liege man of the Lord Edward, King of the English, against all nations.' Allen verified the entry, and found that the writing was upon an erasure. The suspicion aroused by the erasure is not lightened by the record of the proceedings preserved in the register of Dunfermline Abbey. There the scribe expressed the homage of Alexander very differently: '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.' Furthermore, it is added: 'Then said the Bishop of Norwich, "And saving to the King of England, if he right have, your homage for your kingdom," to whom the King instantly replied, saying openly, "To homage for my kingdom of Scotland no man has right, except God alone, nor do I hold that kingdom otherwise than of God alone."' The vague and insidious use of such expressions as 'if he right have,' or 'whatever right he may have,' or 'whenever he chooses to exercise his right,' fostered the tendency to elevate a claim into a right. It indicates that there actually existed no right capable of definite formulation on firm grounds, or at any rate no right capable of assertion. The gross falsification of such records permits us to hold the Dunfermline scribe as at least an equal authority with the Westminster scribe. This convenient vagueness of suggestion of right reappears with like tameness in the tail of the treaty of Brigham.

Did King Edward honestly believe that he was entitled to the homage of the new King of Scots? The question may be least ungraciously answered by another question: Supposing the sides reversed, would Edward have submitted with intellectual conviction to the same claim advanced against himself on the same grounds? We decline to libel his intelligence. It is impossible to believe that he cared one atom for the chronicles he marshalled so industriously, except for indirect purposes. It is easy enough to understand that his conceptions of policy could readily justify a wrong as ministerial to what he conceived to be a higher right.