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10 Cambrian L. Rev. 39 (1979)
Feudal Theory, Social Needs and the Rise of the Heritable Fee

handle is hein.journals/camblr10 and id is 45 raw text is: FEUDAL THEORY, SOCIAL NEEDS AND THE RISE OF THE HERITABLE FEE THOMAS GLYN WATKIN, B.C.L., M.A. (OXON.), BARRISTER AT LAW* The life of the law has not been logic : wrote Oliver Wendell Holmes, it has been experience.' His contemporary, Frederic William Maitland, may well have taken this lesson to heart in his exposition of the develop- ments in English land law during the reign of Henry II (1154-89). Mait- land's account of these developments has become the established view of the facts, and it is one in which those developments are clearly presented as being the products of experience almost to the total exclusion of logic. It is a virtual vindication of Holmes' opinion, in which the strong king's assessment of the needs of his time triumph over the demands of any abstract feudal theory. Maitland presents William the Conqueror granting portions of his newly-acquired kingdom to his followers, after his victory at Hastings, in return for services of various kinds to be rendered by them. The most common service to be rendered by a tenant-in-chief of the king was to supply a quota of knights to serve in the royal army as required. In order to fulfil these commitments, the tenants-in-chief would either enfeoff a knight with a portion of the lands the king had granted him in return for the sub-tenant's promise of military service, or enfeoff a non- military tenant who would provide the wherewithal for the lord to main- tain one or more knights in his household who could fulfil his obligation to the king as required. Land-holding on such terms as these became tenure by knight service, the classic chivalric form of land tenure. Other forms of tenure included that where the services were personal to the king-this was tenure by grand sergeanty, and that where the services were agricultural rather than military-this was generally tenure in socage.2 All land in England after the Conquest was held of some over- lord in return for services of some sort, and thus ultimately of the king who was lord of all and tenant to none. It is this system of holding land in return for services which has become known as the feudal system. According to Maitland, land so granted after the Conquest was usually heritable, and the person who normally inherited a deceased tenant's land, or at least land held in knight service, was his eldest son. As Maitland wrote : Primogeniture creeps in with the Conquest.'3 Every person who held land, therefore, held it from an overlord in return for services, and that overlord would hold a court for his tenants in which their disputes, particularly those relating to their land tenure, could be settled. If the tenant in question were a tenant-in-chief, then his overlord was the king, and it was to the king's court that his disputes were directed for resolution. Eventually, all land disputes required a writ from the king before they could be adjudicated, and this writ was either a praecipe, if the case was to be heard in the king's court,4 or a breve de recto tenendo, if the matter was to be dealt with in the court of a lesser lord.5 The Normans brought with them their own method of settling land disputes, namely trial by battle, in which the disputants or their *Lecturer in Law, University College, Cardiff

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