Page:English Historical Review Volume 35.djvu/172

 164 BARONY AND THANAGE April perverse distortions of thirteenth-century law need not detain us. Selden's views deserve more respect. In his Titles of Honour, he advanced the theory that tenure by barony was but a variety of tenure by knight-service and that all tenants-in-chief by knight-service were barons, though they were distinguished as greater or lesser by the amount of land they held and were called barons or knights accordingly.* This theoiy has practically held the field down to the present day, but it ignores the differences between tenure by barony and tenure by knight-service noted above. To these Madox again drew attention in his Baronia Anglica, showing that Selden had set them aside too lightly. Then in his turn he put forward the theoiy that only ' the King's Homagers holding of him by Barony ' were properly called barons.^ He was, however, no more able than Selden to account for the differences we have noted or to show what tenure by barony was ; and at the end he could only say that ' barony was knight- service embaronied, that is, knight-service enlarged and erected into a barony, or, if you please, made a barony at its first creation '.^ Between these two theories, in one form or another, opinion has wavered from that day to this. Madox's failure to define tenure by barony led Hallam to set aside his arguments for the existence of barony as a tenure distinct from that by knight- service in favour of a theory essentially the same as Selden's.* But the committee appointed by the house of lords in 1819 to report on the dignity of a peer found Madox's arguments incon- trovertible, supported as they were by a new piece of evidence, namely, the advice given to Edward I in 1292 by his prelates, earls, and barons that ' the right of succession to the kingdom of Scotland was to be decided as the right of succession to earldoms, baronies, and other impartible tenures {aliis temiris impartibilibus) was to be decided '. The committee's comment on this was that as the lands called earldoms and baronies were certainly partible inheritances, the answer must have applied to something distinct from the land, ' which ', they conceived, ' could only have been the dignity of Earl or Baron '.^ This comment has been accepted by peerage lawyers as authoritative, agreeing as it does with Coke's famous comments on the Chester case in assuming that there were in the thirteenth century ' inheritances of honor and dignity ' — of which barony was one — separable from the tenure of lands.* Constitutional historians, however, preferring facts to authority and observing that the ' dignity ' of baron conferred on the holder no ascertainable right even to a title of honour before the reign of Richard II, have agreed not only « Pp. 690 ff., 2nd edition. « p. 134. » Ibid. p. 241.
 * Middle Ages, iii. 11 ff. » Lords' Reports, i. 207.
 * C!oko's Commcniaries on Littleton (ed. Hargrave and Butler, 1794), p. 165.