Feudalism

FEUDALISM. - I. HISTORY. - It is the socio-political regime prevailing in Western and Central Europe during the Middle Ages. Purely formal analogies allow one to speak of feudal institutions among other peoples (Egyptians, Japanese, Arabs, etc.), but it is erroneous to consider feudalism as a phase in the historical development of all peoples.

While Roman civilization was based on the concept of the State as a value superior to the concrete forms of government and on the concept of absolute property, in the feudal regime these two concepts vanish: there exists only a class of landowners who exercise the rights of sovereignty. One must not speak of a Roman or Germanic origin of feudalism, nor of a combination of Roman and Germanic elements: feudalism formed and developed with full spontaneity, according to the political and economic needs of medieval life; the Roman and Germanic elements took on an entirely new appearance and value in the new feudal institutions.

In the age of the Late Empire (3rd century A.D.) we witness the progressive decline of the State and of law: in opposition to this, the value of the man who knows how to impose himself upon the representatives of the law becomes affirmed. Roman society comprised only two categories of persons: the potentes and the pauperes. The former formed the great landed aristocracy, the latter were the small proprietors, the propertyless, freedmen. In a society strongly dominated by the principle of violence, the paupers had recourse to the protection of the stronger. Hence a dense network of personal relations between the powerful and the weak, designated by various terms: patrocinium, fides, amicitia; there is talk of clientes, of suscepti, of dediticii. The emperors recognized in patronage a danger to the state organization and fought against it, but in vain; once the Empire fell, it was patronage that upheld Roman society.

Among the Franks as among the Lombards we find free men who are in the service of other men and under their protection; they are called ingenui in obsequio regis. Thus we have powerful men who keep armed men in their service; in the Roman Empire these already existed and were called buccellarii; likewise the Germans knew the comitatus (Gefolgschaft) described by Tacitus.

Among the ingenui, the pueri in obsequio among the Franks, those who were in the service of the king, that is, in his trustis, deserve special mention: the antrustiones had a wergild triple that of the simple free man. The optimates also had men in obsequio; after the term puer, there appears that of vassus (from the Celtic gnos = man, servant).

To enter into the patronage or, as it was said, into the mundium (mundeburdium, French: mainbour) of a powerful man, the verbal act of commendatio was performed, which was then deposited in a written document: the commended man owed his lord service and respect; from him he had food and protection. Among the Lombards too we have the gasindi, those who are in obsequio regis, ducis, etc., but the institution did not develop as it did among the Franks.

To help those who were under their patronage, the powerful could have recourse to another means: the granting of lands to cultivate. Rather than giving the land in absolute ownership or for a term on condition of payment of a census and with labor services, the system was much used of granting the land gratuitously or with a minimal, purely symbolic census, for an undetermined time. It was then said possidere per beneficium alicuius. And in reality it was an act of beneficence to give lands in usufruct, without the burden of a census. Roman law already knew the possessio precaria, a gratuitous, revocable, temporary grant; precario possidere was to enjoy a thing without any right, apart from the good will of the grantor. The Church used to grant lands in precaria, that is, by means of a kind of contract, usually for life, with a minimal census (the precaria was the written request of the powerful man, the prestoria the written grant of the grantor). It was said that precariae were granted per beneficium.

The two institutions of commendatio and beneficium had a great development among the Franks; in theory they were entirely separate, in reality the wars of the 6th and 7th centuries and the replacement of the Merovingians by the Pippinids favored the union of the two customs. The need to increase military forces and therefore to increase the number of reliable persons drove the kings to make use of their patrimonial lands, and then also of ecclesiastical lands: there was no confiscation, but utilization of the goods of the Church by the system of the precaria verbo regis. Under Pepin the Short and under Charlemagne the distribution of lands in benefice to vassals took place with great generosity. Vassals were no longer humble, modest people, but persons of the court, of the administration, of the Frankish aristocracy. Now the term vassi dominici, fideles regis was used; generally the powerful man who had made the grant was called senior. The civil wars from Louis onward forced the Carolingians to procure faithful partisans through vassalage and benefices. In their turn many powerful men secured themselves against the danger of being unable to maintain the commitments made toward the king by granting to their own vassals lands of their own property in benefice (de alodio).

Beneficiary vassalage had great importance in the Carolingian Empire. If there were still simple vassals (pauperiores vassi), more numerous were the vassi casati (who had a land in benefice). The Carolingians sought to disseminate them throughout all their domains and made them the basis of their authority. They now incorporated vassalic relations into the framework of the state organization in order to ensure military service, the administration of justice, the collection of taxes; the consequence of this tendency was the formation of the feudal State.

The comites, provincial officials, had benefices in their districts, which in the 9th century were the same regions in which they had their house, family, friends, and faithful men. There they also had the vassalic enjoyment of the domains that constituted the endowment of their function (honor comitum, or simply comitatus, or ministerium).

Even the honor (the comital office) came to be considered as a benefice, inasmuch as the king put his officials in possession of their functions with the delivery of an object symbolizing authority, by the same procedure used to put the vassal in possession of the benefice. Thus public offices assumed the character of a benefice. The Capitulary of Quierzy of Charles the Bald of 877 attests that the assimilation of honor and beneficium had already occurred. Bishops and abbacies too were in the 9th century assimilated to benefices.

This Carolingian vassalic policy did not bear the hoped-for fruits. The bonds between vassal and lord were stronger than those between subject and king, and in case of conflict the vassals sided with their lord against the king. Thus beneficiary vassalage exercised a dissolving action on the state organization: the monarchy continued to exist, but power was in the hands of the counts, who represented the joints of the feudal system. The generalization of vassalic commitments, these being juridically based on a bilateral control, gave rise to the idea that power too was conditioned by duties of the king toward his subjects as these had toward him. One cannot, however, say that such bonds dislocated the State in the 10th century in France, Italy, or Germany; indeed, in a certain sense they saved its juridical unity.

The two elements that made up the vassalic-beneficiary institution required solemn formalities without which they could not exist. The personal bond between the vassal (vassallo, homo, miles) and the lord (dominus, senior) is contracted by homage and oath. Homage requires the innitio manuum: the vassal, on his knees, bareheaded, without weapons, places his hands in those of the lord; to the latter's question whether he wishes to be his man he replies: volo. The vassal swears fidelity on the Gospel and the ceremony closes with a mutual kiss. In Lombard Italy homage soon disappears; the contract rests on the oath alone. The real bond consists in the delivery by the lord to the vassal of an object that symbolically represents the thing granted in benefice. The object may be a clod of earth, a glove, a staff, a key, etc. The thing granted, from the 10th century on, is designated by the term feodum (German Vieh = cattle, like pecus from pecunia). Usually the fief (French fief, German Lehen) is a piece of land, but it may also be an office, a right, a toll, a church, a monastery. The act is called investiture: it was recorded in writing (confessio, ovea).

Originally the vassal was bound by homage and oath; later the fief acquired greater importance, and then a distinction had to be made between liege fief and plain fief; the first is the one that included a rigid feudal service; the second the one that could coexist with other services, when the vassal began to take lands in fief from different lords.

The disintegration of the State permits the formation of feudal lordships: the feudal lord appropriated all public functions within his fief and therefore exercises political and administrative rights, called banal: monopoly of the banal oven, of the banal mill, rights of lodging, of justice, fiscal rights, right of marriage of subjects within and outside the fief (not the ius primae noctis, which never existed!). In every lordship the lord exercises high and low justice: he mints money there; he can make war and peace at whim.

The vassalic-beneficiary institutions spread throughout all the countries of the Carolingian Empire: then the Normans brought them to England and to the Kingdom of Sicily, and they then passed with the Crusades into Syria and the Byzantine Empire.

Nowhere did feudalism destroy the principle of the king's sovereignty, which always preserved the ius eminens on the basis of which the reconstruction of the State slowly took place, with the return to the Roman concept of State and of property. Typical are the struggles of the feudatories with the communes of Italia regia; the communes often subjugated the feudatories, yet themselves assuming the appearance of feudal lords; finally the communes entered into the framework of the lordships that had a feudal structure.

Feudalism performed a function of great importance in reorganizing the Europe emerging from the ancient world; its system of duties and rights freely contracted and faithfully observed inspired the whole of modern European life: the principles of the inviolability of commitments and of loyalty in observing them had a very great influence on civilization.

Francesco Coppasso

II. LAW

Having arisen in Merovingian France, the fief spread throughout the entire territory of the reconstituted Western Empire, with various local adaptations, since, especially in the Germanic lands between the Rhine and the Elbe, the situation was quite different from that in western France, where both the Gallo-Roman tradition and the more recent Merovingian one could have fixed the nascent fief on territorial bases (in the comitatus), albeit with very many uncertainties given the scarcity of polarizing centers; whereas in trans-Rhenish Germany, on account of the larger circumscriptions (duchies), one cannot rely except on ethnic bases (Saxons, Thuringians, Franconians, Alemanni, Bavarians), the only ones that had a sufficiently firm tradition, while within them the feudal benefice is as varied and variable as can be imagined. The very manner of the superimposition of the feudal order is not without consequences for the first two centuries, since the fact that Charlemagne placed over the recently conquered territories elements taken from the Frankish feudal order already possessing personal requisites (e.g., the title of count, of marquis, of duke) meant that, especially for the more modest fiefs, the title of the feudal lord was reflected upon the territory and that in this way a person did not become count because he was invested with a county, but rather the territory, continually variable according to the king's favors, became a county because it was entrusted to a count.

Exactly the opposite of what happens in Italy: the feudal organization finds here a well-defined territorial base, confronting the cities, with minor subdivisions (sculdasies, pagi, plebes, etc.), and upon these it takes shape, so that the county comes to coincide with that territory which ab antiquo formed that of the Roman municipality; the consequence that follows is that, according to the Roman system adopted by the Lombards, he who is placed over the administration of a territory (which assumes the name of comitatus) exercises by full right all the state functions, in representation of the sovereign, which are tied to and connatural to the territorial entity, the delegation of every power being implicit in the appointment, and there being no need, consequently, for a separate formal act, as instead happened for the Franco-Germanic fiefs. In other words, the sovereign rights, spatially limited to the city and its territory, are embedded in the comitatus and not in the person who governs it, who is a simple occasional bearer of them, whence in Italy the formal act of immunitas (delegation of more or less ample powers) is not necessary, which instead is necessary in France or Germany, and one can therefore speak, for Italy, of a "fief of administration," in which the jurisdictional character predominates over the military one, while the personal element, that is, that of fidelitas, remains common.

This is the bilateral and direct relationship that runs between the senior (grantor) and the vassal (grantee) and that provides for important reciprocal obligations. The vassal (homo, iunior) owes consilium and auxilium, that is to say a period of service at court, participation in assemblies, filling also certain offices, rendering military service, both personally and by leading a contingent of men drawn from his own beneficium, contributing to eventual extraordinary expenses of the king (on the occasion of marriages or ransoms), providing personal guarantee for the king, etc., while the senior has generic obligations of tuitio, of defense of the vassal and his family, which is exercised especially through privileged jurisdiction.

This personal bond does not run only between sovereign and soldier, but also between the latter and any person subject to him, whether he grants a part of his own benefice with the annexed rights (subfief) or whether he subdelegates some of the powers granted to him by the sovereign (subfief of office). Thus a series of beneficiary nuclei comes into being, linked only to their own senior, but not necessarily to his senior, so that every hierarchical coordination among the various categories of vassals is lacking (priores milites: dukes, marquises, counts; secundi milites: viscounts, iudices, advocates, valvassors, valvassins, capitanei de plebe, etc.).

If nevertheless such a system originally led to a strengthening of royal power, inasmuch as the fidelis remained invested with the benefice at the pleasure of the sovereign and could be moved from one seat to another, nor had the subfief developed, already with the first successors of Charlemagne a principle takes shape which, in a certain sense, is the negation of the fief: heredity. A principle not new, that offices passed from father to son, but of enormous import when the exercise of certain determined powers takes root on a territory and upon this a network of interests is kindled, not only political, but juridical, economic, spiritual or even purely sentimental. Thus already from the time of Emperor Lothair one witnesses the passage of certain great fiefs from father to son, certainly by the will of the sovereign; but the repetition of these confirmations gives rise first to a legitimate expectation, then to a custom and a claim. Expectations or claims that were strengthened after Charles the Bald promised, in the Capitulary of Quierzy of 876, to transmit the fief of those fideles who had died in the expeditio italica that was about to set out, to their sons. Now here, contrary to what is commonly said, there is not the general sanction of the heredity of fiefs, but precisely the opposite, since evidently a privilege is being spoken of. Nevertheless the promissio carisiaca strengthened the idea of the heredity of the greater fiefs, which was no longer called into question. Here too, however, one must distinguish between Italy and the Franco-Germanic countries. As a benefice strictly tied to the obligation of military service and in a certain sense crystallized in the amount of revenues necessary for that purpose, the Franco-Germanic fief cannot be subdivided, since a subdivision among descendants would have led to a diminution of those proceeds to be applied to the furnishing of arms, horses and the retinue of the knight, not to mention that the woman is excluded, by her very physical weakness, from rendering any military service: hence the consequence of the indivisibility and of the passing of the fief to a single son, the firstborn male. But in Italy, the fief being an office principally administrative, well delimited territorially, and military service not exactly an accessory, but an activity perfectly equal, in importance, to any other, with military contingents customarily determined for each circumscription, it does not prevent it from being administered in common by two or more heirs and from women also participating in the administrative activity. Thus already around 930 the sons of Adalbert of Ivrea, Ascanio II and Berengar, are seen jointly governing the march of Ivrea, and in the early years of the 12th century Boniface and Conrad of Canossa, sons of Marquis Tedald, governing together the vast domains in the Po Valley.

Such a concept leads to two consequences: 1) the development of multiple undivided rights over the fief, with the creation of true and proper family consortiums, or the segmentation of the fief into as many parts as there are heirs. In the first case, which is the older and which persists as long as the concept of the fief as use of res aliena (in this case belonging to the sovereign) endures, the holders all exercise the same rights over the entire territory, and only the revenues are divided; in the second case it is the territory that is divided among the various heirs, who all, however, bear the original predicate, of marquises, counts, viscounts, etc. This fragmentation, already in progress at the end of the 10th century, is determined by an idea that had come to impose itself on the mentality of the time, namely that the heritability of fiefs is based on the fact that the benefice granted no longer represents a res alieni iuris, but an almost allodial good given to the family, fully at its disposal and over which only an eminent right insists, as happened, in private law, in emphyteuses or perpetual leases. Such is the physiognomy and the genesis of the fief (iure Longobardico, an almost normal form in the territory of the Regnum Italicum).

The picture is completed even further with the constitutio de beneficiis of Conrad the Salic (1037), by which heritability is officially granted to lesser fiefs, so that for the seniores there remains no more than an eminent right, almost theoretical, but with very little resonance in practice.

If by this legislative act the law governing the fief is made uniform and its rules are specified, which a century later Anselm Dell'Orto would set out in the well-known letter to his nephew (the first systematic treatise on feudal law), and the feudal system could be said to have reached its maximum development, politically its rapid disintegration would begin, chiefly through the action of the Communes, which, relying on the principle of the consortial fief, were able to have ceded to them, spontaneously or by coercion, the feudal rights exercised over places of the old comital territory, now made city territory, justifying their own capacity to exercise the rights of individuals on the Roman norms relating to the universitas as a collective person, then adapting Sinibaldo de Pieschi's theory of the legal person. Thus feudal rights could be exercised by the Communes to the same extent and with the same intensity as the old lords, but with the intention of achieving a territorial and jurisdictional unification: so much so that several of the seigneurial rights, which ultimately fragmented the territory into as many more or less extensive jurisdictions, came to be annulled by the very fact of their unification in the Commune.

This work of unification, pursued for three centuries (12th-14th), explains how, with the appearance of the Principalities, there could be a reflowering of feudalism, but on a lesser scale, as an attribution of very limited jurisdictional rights (generally low jurisdiction and almost never the iurisdictio sanguinis in criminal matters) in the face of resounding honorific titles, but with a more direct bond between feudal lord and prince, who is always ready to assert his eminent and pre-eminent right.

Within the framework of the feudal system, however, immunities (especially those granted to the clergy) must not be included, inasmuch as they are a delegation of powers to be exercised either over allodial goods or over fiscal goods granted in perpetuity: only in particular cases, at least for Italy, does immunity become part of the fief, when it is a matter of the incastellamento of a locality belonging to private individuals, since then there is the creation of a jurisdictional "enclave" within the broader ambit of the county; and the express delegation in this case is necessary, because incastellamento is normally devoid of the honor, that is, of the faculties of exercising public powers. Later the immunitary system would be inserted into the feudal one, where the bishop or the abbot would be attributed comital powers, that is, they would become true and proper feudal elements. Only with the passage of time would there come about a conceptual confusion between the one and the other, taking more account of the extrinsic manifestations, effectively equal for both, than of the fundamental act of concession, that is, of the juridical foundation. And already in the 11th century the substantial approximation is an accomplished fact.

One last point remains to be seen: the rights that, within the ambit of his own fief, the investee exercised. The fideles invested with a fief of administration, since the honor with which he was invested comprised all state rights, spatially limited to the territory held in administration, exercised such rights in their entirety, jurisdictional, financial, executive, military and so on, including the regalia (even if the name and the concept are clarified only in the constitutio de regalibus of 1158, the rights existed long before), which are transformed into the banalities, that is, into those exclusive rights (oven, mills, mines, compositi, mariages of semi-free men or of serfs, albinage, etc.), which the feudal lord exercises because he is invested with state rights. Naturally their exercise follows the rule of the fragmentation of the fief, and is localized and fragmented according to the territorial partition that is established, and likewise passes to the Communes, when, through the political vicissitudes of the 12th-13th centuries, the fiefs, by then shattered, are conquered or absorbed by them.

In the case, instead, of beneficiary fiefs or fiefs of office, the rights to be exercised are explicitly handed over in the immunitary act that concurs in the erection of the beneficiary fief, or implicitly contained in the investiture of the office, which is always of limited and particular scope (for example, the office of visdomino for the administration of the goods of the Church limited to those that are not allodial or to the sola pars episcopi, the office of capitano de posta for the collection of duties and tolls, and so on). In this case too, in the course of time, such rights pass to the Commune and are merged into the communal administration.

This unification, and more the absolutist concepts prevailing during the period of the Signorie and the Principalities, bring it about that the resurgent honorific feudalism, if it entails some delegation of power, restricts it only within a very limited ambit: low jurisdiction and tax administration, always, however, under the direct supervision of the prince, who constantly directs his action with appropriate measures to circumscribe and reduce them, so that in Italy already by the end of the 18th century, but before the French intervention, the feudal system is almost annihilated or survives only as a harmless relic.

Carlo Guido Mar