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ROGER LE BRABACON.

Roger le Brabacon,[22] from the part he took in settling the disputed claim to the crown of Scotland, is an historical character. His ancestor, celebrated as “the great warrior,” had accompanied the Conqueror in the invasion of England, and was chief of one of those bands of mercenary soldiers then well known in Europe under the names (for what reason historians are not agreed) of Routiers, Cottereaux, or Brabançons.[23] Being rewarded with large possessions in the counties of Surrey and Leicester, he founded a family which flourished several centuries in England, and is now represented in the male line by an Irish peer, the tenth Earl of Meath. The subject of the present sketch, fifth in descent from “the great warrior,” changed the military ardor of his race for a desire to gain distinction as a lawyer. He was regularly trained in all the learning of “Essions” and “Assizes,” and he had extensive practice as an advocate under Lord Chief Justice de Hengham. On the sweeping removal of almost all of the judges in the year 1290,[24] he was knighted, and appointed a puisne justice of the King’s Bench, with a salary—which one would have thought must have been a very small addition to the profits of his hereditary estates of 33l. 6s. 8d. a year. He proved a most admirable judge;[25] and, in addition to his professional knowledge, being well versed in historical lore, he was frequently referred to by the government when negotiations were going on with foreign states.

Edward I., arbitrator by mutual consent between the aspirants to the crown of Scotland, resolved to set up a claim for himself as liege lord of that kingdom, and Brabacon was employed, by searching ancient records, to find out any plausible grounds on which the claim could be supported. He accordingly travelled diligently both through the Saxon and Norman period, and—by making the most of military advantages obtained by kings of England over kings of Scotland, by misrepresenting the nature of homage which the latter had paid to the former for possessions held by them in England, and by blazoning the acknowledgment of feudal subjection extorted by Henry II. from William the Lion when that prince was in captivity, without mentioning the express renunciation of it by Richard I.—he made out a case which gave high delight to the English court. Edward immediately summoned a Parliament to meet at Norham, on the south bank of the Tweed, marched thither at the head of a considerable military force, and carried Mr. Justice Brabacon along with him as the exponent and defender of his new suzeraineté.

It is a little curious that one of these competitors for the Scottish throne had lately been an English judge, and a competitor for the very place to which Brabacon, for his services on this occasion, was presently promoted.

From the time of William the Conqueror and Malcolm Canmore, until the desolating wars occasioned by the dispute respecting the right of succession to the Scottish crown, England and Scotland were almost perpetually at peace; and there was a most familiar and friendly intercourse between the two kingdoms, insomuch that nobles often held possession in both, and not unfrequently passed from the service of the one government into that of the other. The Norman knights, having conquered England by the sword, in the course of a few generations got possession of a great part of Scotland by marriage. They were far more refined and accomplished than the Caledonian thanes; and, flocking to the court of the Scottish kings, where they made themselves agreeable by their skill in the tournament, and in singing romances, they softened the hearts and won the hands of all the heiresses. Hence the Scottish nobility are almost all of Norman extraction; and most of the great families in that kingdom are to be traced to the union of a Celtic heiress with a Norman knight. Robert de Brus, or Bruis, (in modern times spelt Bruce,) was one of the companions of the Conqueror; and having particularly distinguished himself in the battle of Hastings, his prowess was rewarded with no fewer than ninety-four lordships, of which Skelton, in Yorkshire, was the principal. Robert, the son of the first Robert de Brus, married early, and had a son, Adam, who continued the line of De Brus of Skelton. But becoming a widower while still a young man, to assuage his grief, he paid a visit to Alexander I., then King of Scots, who was keeping his court at Stirling. There the beautiful heiress of the immense lordship of Annandale, one of the most considerable fiefs held of the crown, fell in love with him; and in due time he led her to the altar. A Scottish branch of the family of De Brus was thus founded under the designation of Lords of Annandale. The fourth in succession was “Robert the Noble,” and he raised the family to much greater consequence by a royal alliance, for he married Isabel, the second daughter of Prince David, Earl of Huntingdon, grandson of David I., sometimes called St. David.

Robert, son of “Robert the Noble” and the Scottish princess, was born at the Castle of Lochmaben, about the year 1224. The Skelton branch of the family still flourished, although it became extinct in the next generation. At this time a close intercourse was kept up between “Robert the Noble” and his Yorkshire cousins; and he sent his heir to be educated in the south under their auspices. It is supposed that the youth studied at Oxford; but this does not rest on any certain authority. In 1245, his father died, and he succeeded to the lordship of Annandale. One would have expected that he would now have settled on his feudal principality, exercising the rights of furca et fossa, or “pit and gallows,” which he possessed without any limit over his vassals; but by his English education he had become quite an Englishman, and, paying only very rare visits to Annandale, he sought preferment at the court of Henry III. What surprises us still more is, that he took to the gown, not the sword; and instead of being a great warrior, like his forefathers and his descendants, his ambition seems to have been to acquire the reputation of a great lawyer. There can be little doubt that he practised as an advocate in Westminster Hall from 1245 till 1250. In the latter year we certainly know that he took his seat on the bench as a puisne judge, or justiciar; and, from thence till 1263, extant records prove that payments were made for assizes to be taken before him—that he acted with other justiciars in the levying of fines—and that he went circuits as senior judge of assize. In the 46th year of Henry III. he had a grant of 40l. a year salary, which one would have supposed could not have been a great object to the Lord of Annandale. In the barons’ wars, he was always true to the king; and although he had no taste for the military art, he accompanied his royal master into the field, and was taken prisoner with him at the battle of Lewes.

The royal authority being reëstablished by the victory at Evesham, he resumed his functions as a puisne judge; and for two years more there are entries proving that he continued to act in that capacity. At last, on the 8th of March, 1268, 52 Henry III., he was appointed “capitalis justiciarius ad placita coram rege tenenda,” (chief justiciary for holding pleas before the king); but unless his fees or presents were very high, he must have found the reward of his labors in his judicial dignity, for his salary was very small. Hugh Bigod and Hugh le Despencer had received 1000 marks a year, “ad se sustentandum in officio capitalis justitiarii Angliæ,” (for sustaining themselves in the office of chief justice of England,) but Chief Justice de Brus was reduced to 100 marks a year; that is, 66l. 13s. 4d. Yet such delight did he take in playing the judge, that he quietly submitted both to loss of power and loss of profit.

He remained chief justice till the conclusion of this reign, a period of four years and a half, during which he alternately went circuits and presided in Westminster Hall. None of his decisions have come down to us, and we are very imperfectly informed respecting the nature of the cases which came before him. The boundaries of jurisdiction between the Parliament, the Aula Regis, and the rising tribunal afterwards called the Court of King’s Bench, seem to have been then very much undefined.

On the demise of the crown, Robert de Brus was desirous of being reappointed. He was so much mortified by being passed over, that he resolved to renounce England forever; and he would not even wait to pay his duty to Edward I., now returning from the holy wars.

The ex-chief justice posted off for his native country, and established himself in his castle of Lochmaben, where he amused himself by sitting in person in his court baron, and where all that he laid down was, no doubt, heard with reverence, however lightly his law might have been dealt with in Westminster Hall. Occasionally he paid visits to the court of his kinsman, Alexander III., but he does not appear to have taken any part in Scottish politics till the untimely death of that monarch, which, from a state of peace and prosperity, plunged the country into confusion and misery.

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.