Page:The Complete Peerage Ed 2 Vol 4.djvu/707

 APPENDIX H 685 understand " the dignity of Earl or Baron," what of the rest of the answer, " and other impartible tenures " — words on which the Committee refrain from commenting? If we accept the Committee's reading ot " earldoms and baronies," we must for "other impartible tenures" read "other impar- tible dignities" — a phrase without meaning, for "earl " was the only name of temporal dignity then known. The answer that the succession to the Kingdom of Scotland was to be decided " as the right of succession to earldoms and baronies and other impartible tenures" must be viewed, not in the light of 19th or 20th century legal conceptions of 13th century conditions, but from the stand- point of those who gave the answer. What tenure other than that of earl and baron may then have been believed to be impartible.'' Was not this, perhaps, the tenure by serjeanty of the more honourable offices connected with the King's Household.'' In Bracton's time "a tenement held by serjeanty is treated as inalienable and impartible." Q It is true that the impartibility was not always upheld,('') but if by " other impartible tenures " serjeanties were indicated, the magnates who advised the King probably had in mind the kind of serjeanties held by men who were earls and barons. The theory of impartibility as to these may still have been maintained, though the impartibility of serjeanties held by lesser men was assailable. In the word "tenures," which the Committee ignored, lies the root of the whole matter. The tenure of earldoms and baronies was tenure by barony, and we shall avoid confusion if we set aside for the moment the name of earl as a name of dignity, and regard only the baronial tenure of the earldoi-n. It is true that the lands of a barony were partible, but there was a limit to the partibility. " The widow is not to be endowed with the caput baronize, and the caput baroni^ is not to be partitioned among coheiresses," as we are told by Pollock and iMaitland.C) The answer of those whom the King consulted surely meant that the estate of inheritance which was the Kingdom of Scotland must not be divided among those who claimed to be heirs, for it was an estate impartible as was that which formed the integral part of barony. If the caput baronize were split up, the barony would cease to exist; and if the Kingdom of Scotland were divided among heirs, there would be no kingship. Indeed, far from showing that a barony was a mere dignity, the answer of the magnates goes to prove that all that was then in men's minds was the succession to an estate of inherit- ance the tenure of which imposed duties — on the King of undivided sovereignty and responsibility, on the baron of undivided service to his lord. With regard to the Committee's statement that " many of the persons whose names afterwards appear on record, summoned to Parliament by (*) History of English Law, vol. i, p. 270. ("») Idem, vol. ii, p. 273, note 4, where the authors cite a case in which Henry III in 1 22 1 allowed coheiresses to hold a serjeanty. See also Round's The King's Serjeants. (') See itntf, p. 653.