Page:English Historical Review Volume 35.djvu/171

 1920 BARONY AND THANAOE 163 lay in the possession of power under the king. Yet he does not tell us what power barons had, nor why their fiefs had capita, the inheritance of which was determined by special rules. In other words, he does not tell us what tenure by barony was. There were other differences between tenure by barony and tenure by knight-service, between the baron and the knight. A knight's fee could be divided and subdivided to any extent ; but a barony, although the lands composing it were equally subject to division, was regarded as an indivisible whole,^ a whole, moreover, that retained its identity even when it had escheated to the Crown or had passed into the hands of the holder of another barony ; ^ so much so, indeed, that whereas the tenants of other escheated fees became tenants ut de corona, the tenants of an escheated barony continued to hold lU de baronia? As a rule, heirs of full age could take immediate possession of their inheri- tance without waiting to do homage, but when a baron died the king retained the barony in his own hands until the heir had given security for the relief.* When a tenant by barony was amerced, the amount was not fixed by the sheriff or the justice but before the king in council, and always at a higher rate, so that where other men were amerced at IO5. or 2O5., a baron was amerced at 100s. at least, whence the phrase ' amerciatur ut baro '.^ In consequence, those who could do so were on occasion only too anxious to claim that their tenure was not by barony, even when like Thomas de Furnival they had for many years been summoned to parliament and were indubitably barons in the modern sense.^ Conversely, since tenants by barony could not be called to take any oath on any jury, we have men claiming to hold by barony although they had never been summoned to parliament.' These legal consequences of tenure by barony may be as unimportant as Maitland thought them ; but they are not insignificant, and they call for explanation. It is, therefore, unfortunate that the need for an official definition of tenure by barony did not arise until long after its nature had been so completely forgotten that Littleton did not even mention it in his Treatise of Tenures. It was as a matter of fact only when a crop of peerage cases called attention to the tenure at the beginning of the seventeenth century that lawyers and antiquaries set to work to ascertain its nature. Despite the reverence in which they are held by peerage lawyers, Coke's » Ihid. pp. 169-71, 199. Cf. DUilogus de Scaccario, ii. 10 f ; Magna Carta, c. 43. ° Baronia Anglica, pp. 102 ff. ; cf. Magna Carta, c. 21 ; Year Book, 3 Edward II (Selden Soc), p. 79. ' Ralph Everdon in 1374 (Pike, ConstitiUional History of the House of Lords, p. 95). M2
 * Madox, Baronia Anglica, pp. 45-9. ^ Ibid. pp. 189 £f.
 * Glanvill, ix. 6.
 * Lords^ Reports on the Dignity of a Peer, 3rd report, p. 253.