1. Conceptual definitions
The term ‘feudal law’ has its origins in the words feudum/feodum, which were first used in southern France from the 10th century onwards. Probably derived from the Frankish expression fehu (cattle, wealth), feudum designated initially a knight’s fief. At the same time, feudum was used as a complementary term for the word alleudium (allod, one’s own). This terminology suggests an interpretation of ‘feudal law’ as the entirety of legal rules concerning ‘feudo-vasallic’ structures. This expression points to the relationship between a vassal and a lord, with the granting of the fief to the vassal, on the one hand, and the vassal’s obligation under oath to loyalty and service to the lord, on the other. This is, at least in principle, also true for the use of the term ‘feudal law’ in the context of the English [[common law. Here, the term designates a body of rules concerning relationships between landholding and lordship.
Another meaning of the word ‘feudal law’ becomes evident in the history of language use in France. Here, starting in the 16th century, the term féodalité designated not only the relationship between lords and vassals; it also described the local lordship of the nobility in contrast to the centralized kingship. In the last third of the 18th century, however, féodalité epitomized the illegitimate rule of the aristocracy and the church in general, and the subordinate status of peasants in particular. Thus, the abolition of the régime féodal by the French national assembly on 4 August 1789 marked nothing less than the abolition of all seigneurial rights related to landed property. In the years following the French Revolution, this interpretation of a régime féodal spread across Europe. Now, feudalism often designated not only feudo-vasallic structures, but also manorialism, ie lordship deriving from property ownership over those people who lived on that landed property.
This perspective became radicalized in Marxist history: here, medieval social order beyond the municipal legal area was reduced to the dualism of ‘feudal lords’ and ‘serfs’. In particular, Max Weber and Otto Hintze, in their discussion of ‘feudalism’, included besides manorialism also the structures of political power. The idea of a ‘feudal society’ also formed the key to understanding the medieval social order in the writings of Marc Bloch and those of his disciples. Here, the most structural element was the ‘relation of subordination to the next leader’. Until now it remains highly controversial if and to what extent the expression ‘feudalism’ (and hence also the term ‘feudal law’) can be used for the description of the medieval and early modern political and social order. This is due not only to the strongly ideologically charged notion of ‘feudal’. The use of ‘feudalism’ as a description for the medieval order also results in problems of understanding the role of the legally frequently autonomous municipal civil confederations (Stadtrechte (town laws)), as compared to the nobility, and to unfree peasants.
It is not disputed, however, that the term ‘feudal law’ points in its essence to the rules governing lord-vassal relationships. Therefore, it is these kinds of rules which shall be addressed in the ensuing sections.
2. The emergence of the feudal order (8th‑10th centuries)
Originally, the word vassus (deriving from the Celtic expression gwas (‘servant’), which was first encountered in the 6th century and evolved into the term vasallus from the 9th century onwards) designated a male person subjected to a lord (dominus, senior). The basis of this relationship was the commendation (commendare—to commit for protection, entrust, confide, deposit with), ie the voluntary submission to the lordship of another person who took care of the vassal’s economic needs. In the Carolingian era, ie beginning in the 8th century, commendation was combined with an oath of fealty. This process reflected the inclusion of the Germanic idea of fealty into the concept of vassalage. Most notably, the taking of an oath stressed the vassal’s legal autonomy. Thus, the vassal could be seen as a freeman (albeit a dependent freeman) even after the commendation; the term condition quasi-servile, found in medieval France as a designation for vassalage, is testimony of this perception. At the same time vassals were deliberately deployed for military purposes, a development which was inspired by the example of the royal antrustiones (members of the royal guard) who, on their part, enjoyed a higher social position. This resulted in a social upgrading of vassalage which is mirrored in the emergence of vassi dominici, noble vassals of the king who would pledge themselves to military service. The Bavarian duke Tassilo III (741–not earlier than 794) was probably the first member of the higher nobility to take the oath of fealty.
From the Carolingian era this personal relationship between vassal and lord had been combined with a real (in the sense of in rem) element in the form of the beneficium (benefaction). Originally, beneficium meant the loan of land without or with only a small rent (in contrast to other kinds of loans of land such as the precaria). Starting in the first half of the 8th century vassals were granted beneficia; in 743/744 the Carolingian majordomus Carloman (before 714–754) and Pippin III (714/715–768) widened this connection of vassalage and beneficium: royal vassals were granted ecclesiastical property and had to pay rent to the church (precaria verbo regis). Thereafter, beneficia as consideration for military service were granted more and more frequently, not only by the Carolingians, but also by the nobility and the church. At the same time, not only land but also rights such as the authority to rule an abbey or a county were granted. This connection of vassalage and beneficium changed its character from a mere customary practice to binding customary law by the end of the Carolingian period. Now, rules concerning the rights and obligations regarding the beneficium emerged. As early as the beginning of the 9th century, a breach of the obligation to render military service could result in being deprived of the beneficium (forfeiture). In 877 the capitulary of Quierzy confirmed the provision that a beneficium would (as would the office of a count), in case of its holder’s death devolve upon the holder’s son; thus, the beneficium was turned into a hereditary asset. Rules like this demonstrate that the reciprocity of beneficium and vassalage became stabilized. Nevertheless, vassalage without tenure (vassus non casatus) still existed as much as the grant of land without the obligation to perform military service.
3. The development of feudal law in Europe (11th–14th centuries)
From about the 11th century onwards structures of feudal law became the dominant framework of political power in Europe. At the same time the rules developed in early medieval time gained in complexity and variety. This process corresponded to the fact that the legal scholarship (which started to rise in the 12th century) now also included feudal law.
a) The expansion of feudal law
In the course of the 11th century structures of feudal law began to spread from the former Carolingian realm across western Europe. At the beginning of the Salian era (commencing in 1024) feudal law gained new momentum in the later Holy Roman Empire, particularly in the Italian region. Its importance became even stronger by the end of the investiture contest as a result of the Concordat of Worms 1122. Until then, the imperial bishops had been appointed and invested by the Emperor. Now, the ecclesiastically elected bishops became imperial vassals, a development which has been called the ‘feudalization of the imperial church’ (Peter Classen). But feudal tenure also shaped the structures of governmental power and noble society in France and England, where tenure by knight’s service came to be the dominant type of feudal tenure after 1066. Even the papacy deployed elements of feudal law in its relationships with secular powers. An impressive example of this was John of England’s (1199–1216) submission to papal feudal sovereignty in 1213. In the Crusader states of the Middle East, eg the kingdom of Jerusalem (founded in 1099), feudo-vassalic structures also strongly shaped the political and social order.
b) Essential elements of feudal law
As mentioned previously, the growing complexity of feudal law corresponded to its expansion across Europe. In her seminal work from 1994, Susan Reynolds has even argued that the feudal tenure of the 12th century represented ‘a fundamentally different category of property’ compared to the early medieval beneficia. In Reynold’s view, the vassal’s obligation and land tenure were not strictly mutually dependent until the 11th century. In fact, it was not until the 11th century that clearly recognizable elements of a legal order of feudo-vasallic structures emerged; nevertheless, these rules and institutions appear to have certain antecedents in the Carolingian period. This was particularly true for the establishment of the feudal relationship. An act of submission, the homagium (hominaticum, hominatio—homage), so-called from the 11th century onward, was followed by the vassal’s oath of fealty and the investitura (investiture) by transfer of the feudum. The investiture was often documented by the use of symbols (such as a flag or a sceptre). The mutual obligations deriving from the feudal relationship regularly expired with the lord’s or the vassal’s death. The feudal relationship could, however, be restored by the heirs—this kind of restoration became usual practice in order to secure the continuity of the feudally based order of power and assets.
Landholding remained the most important object of feudal grants. However, governmental rights and privileges could also be the object of a fief. With the rise of the monetary economy pensions were granted as so-called money fiefs. They were of advantage for the lord, because his power remained untouched, and in case of a conflict the lord could control this kind of fief much more easily than jurisdictional powers or landholdings.
Grant of fief and feudal service became mutually dependent from the 11th century. The transfer of the fief thus, in principle, became constitutive of the feudal relationship, even though in England and France household knights and bacheliers indicated the existence of vassals without fief (vassi non casati) until the 12th century. This development found its correspondence in the vassal’s right to cast off his obligation by returning his fief to the lord. On the other hand, the lord was entitled to seize the fief in case of a breach of the vassal’s obligation; in case of the lord’s breach of his own obligations, he lost all rights in the fief. The normative core of the feudal obligation becomes clear in the expression for the breach of this obligation as felony (felonia, félonie). This word had its roots in the term fello (traitor). Thus, the basis of all feudal obligations was formed by loyalty, pledged under oath by the vassal; it found its reflection in the lord’s obligation to be loyal to his vassal. As a result, the vassal was prohibited from causing any kind of damage to his lord. Northern Italian Lombardic feudal laws even derived from this duty of loyalty a prohibition to bring an action or to testify against the lord. Moreover, the ‘realization’ of feudal relationships assumed a specific meaning in the rule that the vassal could dispose over the fief—at least in principle—only with the lord’s consent. The vassal also remained obliged to certain types of duties which were described by the formula consilium et auxilium (advice and aid). Apart from military support, these duties included serving as the lord’s entourage at the royal court and the participation in the feudal court of law. As a consequence, assemblies of vassals came into existence, which formed one point of departure for the emergence and rise of assemblies of states (Estates) which, in turn, are antecedents of modern parliaments.
The feudal bond to a lord did not form an exclusive relationship. The vassal could enter feudal relationships with different lords. This kind of multiplex vassalage (there were sometimes vassals with more than 20 lords) resulted in conflicts of interest. Therefore, a new type of oath of fealty established itself, the homagium ligium (derived, probably, from litare—to sacrifice) which spread from France to western Europe and particularly to England. A homagium ligium bound a vassal exclusively to one lord to support him contra omnes homines (against everyone). In a later stage of development the vassal would commit himself only to giving priority to the one feudal relationship over others; from the 12th century more and more versions of this institute of ligesse emerged.
c) The emergence of a learned feudal law
The broad and multiple variety of legal rules on feudo-vassalic structures resulted in the increased use of writing. This is true not only in regard to documentations of investitures. Initially, they were testified to only by the attendees, but, originating in northern Italy with the breve testatum, the written documentation (for which a fee had to be paid) became common. But the pertinent legal rules, too, originally part of oral customary law, came to be laid down in writing. This process took place in part by royal legislation (eg imperial feudal laws of 1037, 1136, 1154, 1158 and 1338). Perhaps even more important were the written collections of regional feudal customary law, because they fostered the consolidation of feudal law traditions in the practice of the courts and in legal scholarship. A very influential law book of this kind was the Sachsenspiegel (literally: mirror of the Saxons), composed by Eike of Repgow around 1230, which contained a separate part on feudal law and which strongly influenced feudal legal practice in middle and eastern Europe up to the 19th century.
But feudal law also became part of the orbit of the ius commune. Beginning in the middle of the 12th century, a voluminous collection of Lombardic feudal law rules and imperial feudal laws was compiled. This compilation, called Libri Feudorum (Books of Fiefs) and glossed, inter alia, by Accursius (around 1185–1263), found its way into the Corpus Juris Civilis as decima collatio. It constituted the starting point for a new jurisprudential discipline emerging at the law faculties in northern Italy, the ‘feudist branch’. Until the end of the 18th century the Libri Feudorum remained the most important textual basis for the European tradition of feudal law. The feudal practice was also reflected in the legists’ discourse. The lord’s and the vassal’s shared rights in the fief did not fit into the legal framework of Roman law and its idea of property. In order to overcome this inconsistency, legistic jurists developed the idea of divided property: the lord retained dominium directum in the fief, while the vassal acquired a kind of beneficial ownership (dominium utile).
The importance and broad acceptance of feudal law in medieval society was based on its character as an instrument of political and social order. It shaped the mutual relationship between kingdom and nobility; and closeness and distance to the ruler could be expressed in institutionalized forms. As a consequence political power could be ordered in a new way; Heinrich Mitteis has even called feudal law ‘Helfer des Staatsgedankens’ (an institution nurturing the concept of state). In this regard it is telling that the Staufen Emperors of the 12th century were trying to tie the transfer of imperial rights to feudal law. Accordingly, in 1157 an imperial document stated that ‘ea que ab imperio tenentur, iure feudali possidentur’ (what is held from the empire is possessed by feudal entitlement). A vassal who had been enfeoffed directly by the Emperor held the title of ‘prince of the empire’ (princeps imperii) and occupied the top of the social and political hierarchy. The attraction of this position for the higher nobility is demonstrated by the fact that some nobles transferred their allodial property to the Emperor who would enfeoff back these assets after they had been converted to imperial property. This kind of practice corresponded to a marked complexity of feudal hierarchy which, originally, had contained only three ranks (kingdom, crown vassals, sub-vassals). As domination and subordination and thus different ranks, were expressed by the capacity to grant fiefs, feudal tenants and subtenants used enfeoffments as a political and social strategy. As a consequence, a hierarchical order emerged in the empire, which was described as an arrangement of seven ranks in the Sachsenspiegel by Eike, with the king (who was, in theory, owner of all lands) occupying the supreme rank and noblemen who merely received, but did not grant fiefs, occupying the lowest. But while the Emperor’s feudal supremacy was eroding in the 13th and 14th centuries, the French kings were able to enforce a strict feudalization of their realm (nulle terre sans seigneur). This was also true for England. While the statute Quia emptores in 1290 confirmed the right of every tenant to alienate his fief, it also ruled that the new subtenant was legally bound to the same lord as the tenant. This provision brought the practice of subinfeudation to a halt.
4. Feudal law and statehood (15th–18th centuries)
With the rise of the institutionalized early modern state, feudal relationships lost their importance as core elements of political order. Sometimes, however, kings and rulers still used the political potential of feudal law. Joseph I (1705–11), for example, tried to stabilize his authority in Italy by claiming traditional imperial feudal rights for this region. In other states, too, feudal law remained a framework for the relationship between nobility and the kingdom. This is true, in particular, for noble privileges functioning as tax exemptions, which, partially, remained in effect until the late 19th century, as is illustrated by the Prussian example. Under the English common law, tenure and its duties remained part of the legal tradition until 1925.
Peter Classen, ‘Das Wormser Konkordat in der deutschen Verfassungsgeschichte’ in Josef Fleckenstein (ed), Investiturstreit und Reichsverfassung, 1973, 411; Heinrich Mitteis, The State in the Middle Ages: A Comparative Constitutional History of Feudal Europe (1975); Stroud Francis Charles Milsom, The Legal Framework of English Feudalism. The Maitland Lectures Given in 1972 (1977); Susan Reynolds, Fiefs and Vassalls. The Medieval Evidence Reinterpreted (1994, 1996); Centro Italiano di Studi Sull’Alto Medioevo (ed), Il Feudalesimo nell’alto medioevo (2000); François Louis Ganshof, Feudalism (3rd edn, 1996); Olivia F Robinson, T David Fergus and Wiliam M Gordon, European Legal History (3rd edn, 2000) 26 ff; John H Baker, An Introduction to English Legal History (4th edn, 2002), 223; Alexa Nieschlag (tr), Gerhard Dilcher, ‘Feudal Law: Medieval and Post-Medieval Law’ in Stanley N Katz (ed), The Oxford International Encyclopedia of Legal History, vol III (2009) 77; John Hudson, ‘Feudal Law: English Common Law’ in Stanley N Katz (ed), The Oxford International Encyclopedia of Legal History, vol II (2009) 72.
For a textbook with numerous sources translated in English see David Herlihy (ed), The History of Feudalism (1970, reprinted 1979); some texts also in François Louis Ganshof, Feudalism (3rd edn, 1996); numerous Latin texts regarding continental Europe are available in the editions of the Monumenta Germaniae Historica. For the English tradition see in particular John Baker, Baker and Milsom’s Sources of English Legal History: Private Law to 1750 (2nd edn, 2010). The Libri Feudorum is available in Karl Lehmann, Das langobardische Lehnrecht (Handschriften, Textentwicklung, ältester Text und Vulgattext nebst der capitula extraordinaria) (1896); Karl Lehmann and Karl August Eckhardt (eds), Consuetudines feudorum, editio altera (1971); The Sachsenspiegel is best available in a modern German translation in the edition by Clausdieter Schott, Der Sachsenspiegel (1996); for an English translation of a fourteenth century manuscript of the Sachsenspiegel see Maria Dobozy (tr), The Saxon Mirror: A Sachsenspiegel of the Fourteenth Century (1999).