Page:English Historical Review Volume 35.djvu/173

 1920 BARONY AND THANAGE 165 in rejecting the lords' conclusion but also in ignoring their argument. Therefore, when seeking in their turn to ascertain the nature of tenure by barony, some, like Stubbs^ and Mr. Round,^ have followed Hallam in ignoring Madox's arguments, while others, like Maitland and Pike, have taken them into account ; but all have ended in effect by supporting Selden's theory. A few quotations from the History of English Law will make the present state of opinion clear. ' As regards the land law it is to all appearance the relief and the relief only that differences the barony from an aggregate of knights' fees or makes it necessary to speak of tenure by barony.' The other incidents of tenure, aid, wardship, marriage, escheat, being the same, the other differences, being of a subordinate kind, ' will not justify us in co-ordinating tenure by barony with the other tenures, such as knight-service and serjeanty '. Especially, ' the statement that a man holds a barony, or a parcel of knights' fees, of the king, tells us nothing as to the relationship between him and his tenants, and does not even tell us that he has any tenants at all '.^ To which may be added this from Pike's Constitutional History of the House of Lords : ' The Barons. . . merely as Barons, held no office and the descent of their lands was untrammelled by any of thQ difficulties incident to the descent of offices.' * The learning of these writers has rightly earned the deepest respect for their opinions on any point of medieval constitutional history, and it is only with diffidence that the boldest would dissent from their views ; but in this case their conclusions leave too many questions unanswered to be accepted as final without further inquiry. Why, for instance, if a barony was but a parcel of knights' fees, was it, unlike other parcels of knights' fees, regarded as impartible and indestructible ? Why had it a caput, which they might not have ? Why was the descent of that caput determined by special rules ? Why did the magnates in 1292 call tenure by barony impartible when lands so held were constantly being partitioned among co-heirs ? Why did all tenants by barony pay the same relief whether they held two knights' fees or 200 ? Why were they amerced before the king in council and not by the king's justices as other tenants-in-chief were, and always at a higher rate ? Why were they exempt from service on juries ? Above signifies a definite number of knights' fees. But as it has been found impossible to reduce the territorial baronies to any fixed area of extension, it is probable that the title or dignity of baron, or king's baron, involves, from its first entrance into English history, nothing more than the idea of royal vassal or tenant-in-chief ' : Constitutional History of England, i. 395-6. ^ ' To hold per baroniam was, in the first instance, neither more nor less than to hold ut baro, as a tenant-in-chief ' : Peerage and Pedigree, i. 359. 3 Hist, of Engl. Law, i. 259, 241. * p. 28.
 * ' In one aspect any of the king's dependents are barons ; in another, the barony