as
a baron may have been founded on tenure, a contrary practice had
prevailed for ages, and that, therefore, it was not to be taken as then
forming part of the constitutional law of the land." (p. 446.) Thus
ended barony by tenure. The final decision, for such it has been
considered, and recent attempts to revive the ancient doctrine have been
defeated, has prevented many tedious investigations of claims to
baronial descent, and of alienations in times long past. For it could
not be pretended that every fraction of a barony gave a right to
summons; and, on the other hand, alienations of parcels, and descents to
coparceners, must have been common, and sometimes difficult to disprove.
It was held, indeed, by some, that the _caput baroniae_, or principal
lordship, contained, as it were, the vital principle of the peerage, and
that its owner was the true baron; but this assumption seems uncertain.

It is not very easy to reconcile this peremptory denial of peerage by
tenure with the proviso in the recent statute taking away tenure by
knight-service, and, inasmuch as it converts all tenure into socage,
that also by barony, "that this act shall not infringe or hurt any title
of honour, feudal or other, by which any person hath or may have right
to sit in the lords' house of parliament, as to his or their title of
honour, or sitting in parliament, and the privilege belonging to them as
peers." (Stat. 12 Car. II. c. 24, s. 11.)

Surely this clause was designed to preserve the incident to baronial
tenure, the privilege of being summoned to parliament, while it
destroyed its original root, the tenure itself. The privy council, in
their decision on the Fitzwalter claim, did not allude to this statute,
probably on account of the above proviso, and seem to argue that, if
tenure by barony was no longer in being, the privilege attached to it
must have been extinguished also. It is, however, observable that tenure
by barony is not taken away by the statute, except by implication. No
act indeed can be more loosely drawn than this, which was to change
essentially the condition of landed property throughout the kingdom. It
literally abolishes all tenure _in capite_; though this is the basis of
the crown's right to escheat, and though lands in common socage, which
the act with a strange confusion opposes to socage _in capite_, were as
much holden of the king or other lord as those by knight-service.
Whether it was intended by the silence