FEUDALISM. –
I. HISTORY
It is the social and political regime prevailing in Western and Central Europe during the Middle Ages. Purely formal analogies make it possible to speak of feudal institutions among other peoples (Egyptians, Japanese, Arabs, etc.), but it is erroneous to regard f. as a phase in the historical development of all peoples.Whereas 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, under the feudal regime both concepts disappear: there exists only a class of landowners who exercise the rights of sovereignty. One must not speak of a Roman or Germanic origin of f., nor of a combination of Roman and Germanic elements: f. formed and developed with complete spontaneity, according to the political and economic requirements of medieval life; the Roman and Germanic elements assumed an entirely new character and value in the new feudal institutions.
In the age of the Late Empire (3rd century A.D.), one witnesses the progressive decline of the State and of the law; in opposition to this, the value of the man capable of imposing himself upon the representatives of the law asserts itself. Roman society now comprises only two categories of persons: the potentes and the pauperes. The former constitute the great landed aristocracy; the latter are small proprietors, the propertyless, and freedmen. In a society strongly dominated by the principle of violence, the pauperes seek the protection of the stronger. Hence there arose a dense network of personal relationships between the powerful and the weak, designated by various terms: patrocinium, fides, amicitia; there is talk of clientes, of suscepti, of dediticii disitium. The emperors recognized patronage as a danger to the organization of the State and fought against it, but in vain; once the Empire had fallen, it was patronage that governed 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 there were powerful men who kept armed men in their service; they had already existed in the Roman Empire and were called buccellarii; similarly, the Germans knew the comitatus (Gefolgschaft) described by Tacitus.
Among the ingenui, the pueri in obsequio among the Franks, particular importance belongs to those who were in the king’s service, that is, in his trustis: the antrustiones had a guidrigild three times that of the ordinary free man. The optimates too had men in their obsequium; after the term puer, that of vassus appears (from the Celtic gnos = man, servant).
To enter into the patronage or, as it was called, the mundio (mundeburdo, French: mainbour) of a powerful man, the verbal act of the commendatio was performed, and was subsequently deposited in a written document: the commended man owed his lord service and respect; in return he received sustenance and protection. Among the Lombards too we find the gasindi, those who are in obsequio regis, ducis, etc., but the institution did not develop as it did among the Franks.
To assist those under their patronage, the powerful could resort to another means: the granting of land to cultivate. Rather than granting land in absolute ownership, or for a fixed term subject to the payment of a rent and the performance of labor, it became customary to grant land gratuitously or for a minimal, purely symbolic rent, for an undetermined period. It was then said that one possessed it per beneficium alicuius. And in reality, granting land in usufruct without the burden of rent was an act of beneficence. Roman law already knew the possessio precaria, a gratuitous, revocable, temporary grant; precario possidere meant to enjoy a thing without any right other than the goodwill of the grantor. The Church used to grant land in precaria, that is, by means of a kind of contract, usually for life, with a minimal rent (precaria was the powerful man’s written request, prestorie the grantor’s written concession). It was said that the precarie were granted per beneficium.
The two institutions of the commendatio and the beneficium underwent considerable development among the Franks; in theory they were entirely separate, but in reality the wars of the 6th and 8th centuries and the replacement of the Merovingians by the Pipinids favored the union of the two customs. The need to increase military strength and thereby increase the number of dependable persons led the kings to make use of their patrimonial lands, and later also of ecclesiastical lands: there was no confiscation, but rather use of the Church’s property through the system of the precaria verbo regis. Under Pepin the Short and under Charlemagne, the distribution of lands as benefits to vassals took place with great generosity. Vassals were no longer humble or modest people, but persons of rank, of the administration, and of the Frankish aristocracy. The terms vassi dominici and fideles regis were now used; in general, the powerful man who had made the grant was called senior. The civil wars from the time of Louis onward forced the Carolingians to acquire loyal partisans through vassalage and benefits. In turn, many powerful men protected themselves against the danger of being unable to fulfill the obligations they had undertaken toward the king by granting their own vassals lands belonging to them as benefits (de oledio).
Beneficiary vassalage was of great importance in the Carolingian Empire. Although there were still simple vassi (pauperiores vassi), the vassi casati (who held land as a benefit) were more numerous. The Carolingians sought to distribute them throughout all their domains and made them the foundation of their authority. They now incorporated vassal relationships into the framework of the State’s organization in order to ensure military service, the administration of justice, and the collection of tributes; the consequence of this tendency was the formation of the feudal State.
The comites, provincial officials, held benefits in their districts, which in the 9th century were the very regions in which they had their homes, families, friends, and dependants. There they also enjoyed, in vassalial tenure, the domains that constituted the endowment of their office (on de comitum, or simply comitatus, or ministerium).
The honor (the comital office) likewise came to be regarded as a benefit, insofar as the king installed his officials in possession of their offices by handing over an object symbolizing authority, through the same procedure used to place a vassal in possession of a benefit. Thus public offices assumed the character of benefits. The Capirelare of Quierzy of Charles the Bald of the Epy attests that the assimilation of honor and beneficium had already taken place. Bishops and abbeys too came in the 9th century to be assimilated to benefits.
This Carolingian vassal policy did not produce the hoped-for results. The bonds between vassal and lord were stronger than those between subject and king, and in the event of conflict the vassals stood with their lord against the king. Thus beneficiary vassalage exerted a dissolving action upon the organization of the State: the monarchy continued to exist, but power lay in the hands of the counts, who represented the nodes of the feudal system. The generalization of vassal obligations, since these were legally based on bilateral control, gave rise to the idea that power itself was likewise conditioned by duties owed by the king to his subjects, just as they owed duties to him. It cannot, however, be said that these bonds displaced the State in the 10th century in France, Italy, or Germany; indeed, in a certain sense, they preserved its juridical unity.
The two elements composing the vassal-beneficiary institution required solemn formalities, without which they could not exist. The personal bond between the vassal (vassallo, uomo, miles) and the lord (dominus, senior) was contracted through homage and the oath. Homage required the innitio manuum: the vassal, kneeling, bareheaded and unarmed, placed his hands in those of the lord; when asked whether he wished to be his man, he replied: volo. The vassal swore fidelity on the Gospel, and the ceremony concluded with a reciprocal kiss. In Lombard Italy homage soon disappeared; the contract rested solely on the oath. The real bond consisted in the lord’s delivery to the vassal of an object symbolically representing the thing granted in benefice. The object could be a clod of earth, a glove, a staff, a key, etc. From the 10th century, the thing granted was designated by the term feodum (German Vieh = cattle, as pecus derives from pecunia). Usually the fief (French fief, German Lehen) was land, but it could also be an office, a right, a toll, a church, or a monastery. The act was called investiture: it was recorded in writing (confessio, ovea).
Originally the vassal was bound by homage and the oath; later the fief assumed greater importance, and it then became necessary to distinguish between the ligian fief and the plain fief. The former was one that included a strict feudal service; the latter was one that could coexist with other services, when the vassal began to take lands in fief from several lords.
The disintegration of the State allowed the formation of feudal lordships: the feudal lord appropriated all public functions within his fief and thus exercised political and administrative rights, called banai: the monopoly of the banal oven and the banal mill, rights of hospitality, of justice, and of taxation, and the right of maritagium over subjects within and outside the fief (not the ius primae noctis, which never existed!). In every lordship the lord exercised high and low justice; he minted coinage there and could make war or peace at will.
The vassal-beneficiary institutions spread throughout all the countries of the Carolingian Empire; the Normans then brought them to England and the Kingdom of Sicily, after which they passed with the Crusades into Syria and the Byzantine Empire.
Nowhere did f. destroy the principle of the king’s sovereignty, for he always retained the ius eminens, on the basis of which the State was slowly reconstructed through the return to the Roman concept of the State and of property. Typical were the struggles of the feudal lords with the communes of Italia regia; the communes often subdued the feudal lords, while themselves assuming the character of feudal lords; finally, the communes entered into the framework of lordships organized on a feudal basis.
F. performed a function of great reorganizational importance in the Europe emerging from the ancient world; its system of freely contracted and faithfully observed duties and rights inspired the whole of modern European life. The principles of the inviolability of commitments and of loyalty in observing them exerted an enormous influence on civilization.
Francesco Coppasso
II. LAW
Originating in Merovingian France, feudalism spread throughout the 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 established the emerging feudal system on territorial foundations (in the counties), albeit amid very considerable uncertainty owing to the scarcity of organizing centres. In trans-Rhenish Germany, by contrast, the larger districts (duchies) could be based only on ethnic foundations (Saxons, Thuringians, Franks, Alemanni, Bavarians), the only ones possessing a sufficiently firm tradition, while within them the feudal benefice was as diverse and variable as could possibly be imagined. The very manner in which the feudal system was superimposed was not without consequences during the first two centuries, since Charlemagne’s practice of placing in charge of recently conquered territories men drawn from the Frankish feudal order who already possessed personal qualifications (e.g. the title of count, margrave, or duke) meant that, especially in the case of more modest fiefs, the title of the feudal lord was reflected in the territory. Thus a person did not become a count because he had been invested with a county; rather, the territory, continually varying according to the king’s favours, became a county because it had been entrusted to a count.Precisely the opposite occurred in Italy: here the feudal organization found a well-defined territorial basis, centred in the cities, with smaller subdivisions (scuidaesie, pagi, plebes, etc.) upon which it was modelled, so that the county came to coincide with the territory which ab antiquo had formed that of the Roman municipium. The resulting consequence was that, according to the Roman system adopted by the Lombards, the person placed in charge of administering a territory (which assumed the name of comitatus) exercised, by full right and on behalf of the sovereign, all the functions of the state connected with the nature of the territorial entity. The appointment itself implied the delegation of every power and consequently did not require a separate formal act, as was instead the case with Franco-German fiefs. In other words, sovereign rights, spatially limited to the city and its territory, were vested in the comitatus and not in the person who governed it, who was merely their occasional bearer. Hence in Italy there was no need for the formal act of immunitas (the delegation of more or less extensive powers), which was necessary in France or Germany; one may therefore speak, in the case of Italy, of an “administrative fief,” in which the jurisdictional character predominated over the military one, while the personal element remained common to both: that is, fidelitian.
This is the bilateral and direct relationship between the senior (grantor) and the vassal (grantee), and it entails important reciprocal obligations. The vassal (homo, iunior) owes consilium and auxilium, that is, a period of service at court, participation in assemblies, and the holding of certain offices; he must perform military service, both personally and by leading a contingent of men drawn from his own beneficium; contribute to any extraordinary expenses of the king (on the occasion of marriages or ransom); provide a personal guarantee for the king, and so forth. The senior, meanwhile, has the general obligations of tuitio, namely the defence of the vassal and his family, exercised above all through privileged jurisdiction.
This personal bond existed not only between sovereign and warrior, but also between the latter and any person subject to him, whether he granted a portion of his own benefice together with the rights attached to it (subfief), or subdelegated some of the powers granted to him by the sovereign (official subfief). A series of beneficiary units was thus created, bound only to their own senior, but not necessarily to that senior’s superior, so that all hierarchical coordination among the various categories of vassals was lacking (priores milites: dukes, margraves, counts; secundi milites: vicecomites, iudices, advocates, valvassors, valvassins, capitanei de plebe, etc.).
Although such a system originally strengthened royal power, since the fidelis remained invested with the benefice at the sovereign’s pleasure and could be transferred from one place to another, and since the subfief had not yet developed, a principle already began to emerge under Charlemagne’s first successors which, in a certain sense, was the negation of the fief: heredity. It was not a new principle that offices should pass from father to son, but it assumed enormous importance when the exercise of certain powers became rooted in a territory and a network of interests was formed around it—not only political, but also juridical, economic, spiritual, and even purely sentimental. Thus, as early as the time of the Emperor Lothair, some great fiefs can be seen passing from father to son, certainly by the sovereign’s will; but the repetition of these confirmations first gave rise to a legitimate expectation, then to a custom, and finally to a claim. Such expectations or claims were strengthened after Charles the Bald promised, in the Capitular of Quierzy of 876, to transmit to the sons the fief of those fideles who might die during the expeditio italica then about to set out. Here, however, contrary to what is commonly stated, there is no general sanction of the hereditary character of fiefs, but precisely the opposite, since the text clearly speaks of a privilege. Nevertheless, the promissio caritiana strengthened the idea of the hereditary character of the greater fiefs, which was never again called into question. Here too, however, a distinction must be made between Italy and the Franco-German countries. As a benefice closely connected with the obligation of military service and, in a certain sense, crystallized in the amount of revenues necessary for that purpose, the Franco-German fief could not be divided, since division among descendants would have led to a reduction of the income to be applied to the provision of weapons, horses, and the retainers accompanying the knight. Moreover, women were excluded, by their very physical weakness, from rendering any military service. Hence the indivisibility of the fief and its passage to a single child, the eldest son. In Italy, however, since the fief was principally an administrative office, territorially well delimited, and military service was not merely an accessory but an activity perfectly equal in importance to any other, with military contingents customarily determined for each district, there was no obstacle to its being administered jointly by two or more heirs, or to women also participating in the administrative activity. Thus, as early as about 930, the sons of Adalbert of Ivrea, Ascanio II and Berengario, are seen governing the marca eparedicee jointly; and in the early years of the twelfth century Bonifacio and Corrado of Canossa, sons of the margrave Tedaldo, governed the vast domains in the Po Valley together.
Such a concept leads to two consequences: 1) the development of multiple coexisting rights over the fief, with the creation of genuine family consortiums, or the division of the fief into as many parts as there are heirs. In the first case, which is the older one and persists as long as the concept of the fief as the use of another’s property (in this case, property belonging to the sovereign) remains in force, the holders all exercise the same rights over the entire territory and divide only the revenues; in the second case, it is the territory that is divided among the various heirs, all of whom, however, bear the original title—marquises, counts, viscounts, and so forth. This fragmentation, already under way at the end of the tenth century, was determined by an idea that gradually imposed itself upon the mentality of the time: namely, that the hereditary nature of fiefs was based on the fact that the benefit granted no longer represented a res alieni iuris, but rather an almost allodial property given to the family, fully at its disposal, over which there remained only an eminent right, as occurred, in private law, with emphyteuses or perpetual leases. Such are the character and the genesis of the fief iure Longobardo, a form that was virtually normal in the territory of the Regnum Italicum.
The picture was completed still further by the constitutio de beneficis of Conrad the Salian (1037), by which hereditary succession was officially granted to the lesser fiefs, so that the seniores retained no more than an eminent, almost theoretical right, with very little practical significance.
If this legislative act made uniform the law governing the fief and defined the rules that a century later Anselmo Dell'Orto would expound in his well-known letter to his nephew (the first systematic treatise on feudal law), and if the feudal system may be said to have reached its fullest development, politically its rapid disintegration was beginning, chiefly through the action of the Communes. Relying on the principle of the consortial fief, they were able to have the feudal rights exercised over localities in the former comital territory—now transformed into urban territory—transferred to them, whether voluntarily or by compulsion. They justified their capacity to exercise the rights of individuals on the Roman rules concerning the universitas as a collective person, subsequently adapting the theory of Sinibaldo de Pieschi concerning the juridical person. Thus the Communes could exercise feudal rights to the same extent and with the same intensity as the former lords, but with the aim of achieving territorial and jurisdictional unification. Consequently, several seigneurial rights, which ultimately fragmented the territory into a corresponding number of more or less extensive jurisdictions, were nullified by their unification within the Commune.
This work of unification, pursued for three centuries (twelfth–fourteenth), explains how, with the emergence of the Principalities, there could be a revival of f., but on a lesser scale, as the attribution of extremely limited jurisdictional rights—generally low jurisdiction and almost never the iurisdictio sanguinis in criminal matters—as opposed to resounding honorary titles. At the same time, however, there was a more direct bond between the feudal lord and the prince, who was always ready to assert his eminent and pre-eminent right.
Immunities must not, however, be included within the framework of the feudal system, especially those granted to the clergy, since they constituted a delegation of powers to be exercised either over allodial property or over fiscal property granted in perpetuity. Only in particular cases, at least in Italy, did immunity become part of the fief, when it involved the fortification of a locality belonging to private persons; for in that event a jurisdictional “enclave” was created within the wider sphere of the county. The delegation expressly stated in this case was necessary, because a fortified settlement normally lacked the honor, that is, the power to exercise public authority. Later, the immunitary system would be incorporated into the feudal one, whenever the bishop or abbot was assigned comital powers and thus became a genuine feudal element. Only with the passage of time would a conceptual confusion arise between the two, with greater attention being paid to their external manifestations, which were in fact identical in both cases, than to the fundamental act of concession, that is, to the juridical foundation. And already in the eleventh century the substantive rapprochement was an accomplished fact.
One final point remains to be considered: the rights exercised by the enfeoffed holder within his own fief. The fidello invested with a fief of administration, since the honor with which he was invested included all state rights spatially limited to the territory entrusted to his administration, exercised those rights in their entirety—jurisdictional, financial, executive, military, and so forth—including the regalia (even though the name and the concept were clarified only in the constitutio de regalibus of 1158, the rights themselves had already existed for a long time). These were transformed into the bannalities, that is, those exclusive rights—ovens, mills, mines, compositions, marriages involving semi-free persons or serfs, escheat, and so forth—which the feudal lord exercised because he had been invested with state rights. Naturally, their exercise followed the rule of the division of the fief: it became localized and divided in accordance with the territorial distribution that was established, and it too passed to the Communes when, as a result of the political developments of the twelfth and thirteenth centuries, the fiefs, by then fragmented, were conquered or absorbed by them.
In the case, instead, of beneficiary fiefs or office fiefs, the rights to be exercised were expressly set forth in the act of immunity that contributed to the establishment of the beneficial fief, or were implicitly contained in the investiture of the office, which was always limited and particular in scope—for example, the office of visdomino for administering Church property, limited to property that was not allodial or to the pars episcopi alone; the office of capitano de posta for collecting duties and tolls; and so forth. In this case too, over the course of time, these rights passed to the Commune and were merged into the communal administration.
This unification, together with the absolutist concepts prevailing during the period of the Signorie and the Principalities, meant that the resurgent honorary f., if it involved any delegation of power, restricted it to a very limited sphere: low jurisdiction and tax administration, always, however, under the direct supervision of the prince. The prince constantly directed his actions through appropriate measures intended to circumscribe and reduce these powers, so that in Italy, already by the end of the eighteenth century, but before the French intervention, the feudal system was almost completely annihilated or survived only as a harmless relic.