INTEGRATION

The phrase "integration of feudal law" refers to that development of Western legal consciousness which made it both possible and necessary to interpret the various rights and obligations associated with lordВvassal relations as constituting an integrated whole.

It came to be understood that the concepts and institutions of homage and fealty, ligantia, the socalled feudal incidents (military service or scutage, reliefs, aids, marriage, wardship, and others), the heritability and alienability of the fief, the rules of escheat, diffidatio, suit of court, and other related concepts and institutions all formed a distinct and entire legal system.

Although the system remained for the most part a system of customary law rather than enacted law, it eventually acquired written sources as well. In the eleventh and twelfth centuries numerous charters, issued to confirm the enfeoffment of vassals by lords, recorded specific feudal customs. 18Urban statutes, such as the charter of Pisa of 1142, did the same. The Usages of Barcelona, written in 1068, was largely a restatement of feudal law. In time, feudal customs, both unwritten and written, came to be analyzed by learned jurists, who sought to define their underlying principles. Thus at some time between 1095 and 1130 Umberto de Orto, a Milanese consul, wrote a book entitled Consuetudines Feudorum (Customs of Fiefs), later called the Libri Feudorum (Books of Fiefs), which was an attempt to set forth systematically the feudal law. This book was used as a text at Bologna, where it was glossed and expanded, and its final version of 1220 was added to Justinian's Novels. It restated both customary feudal law and particular enactments of the emperors Lothar II, Frederick I, and Henry VI. Thus it purported to analyze not only Lombard feudal law but a more universal customary law, different from canon law, different also from royal or urban or mercantile law, yet common to the West and applicable to feudal relations generally.

Umberto and the jurists who followed him considered, in David Herlihy's words, "that the customary law of the fief was logically consistent and entirely amenable to scientific investigation... [They] assumed that the aggregate of feudal customs was more than a formless mass of regional idiosyncrasies; rather, the customs shared common principles and therefore did constitute a true legal system. But the jurists fully recognized that these customs still constituted only one part of the total body of laws by which society was governed." ¹⁹

The law of feudal land tenures merged with the growing body of royal (or ducal) law in Sicily, England, Normandy, France, the German duchies, Flanders, Spain, and elsewhere. In 1187 Glanvill's treatise on

310- the laws and customs of England systematized most of the fundamental principles of feudal law in England under the categories of the royal judicial writs that had been issued in the preceding decades. About 1200 a Norman book of customs, the Tres ancien coutumier de Normandie, c ontained a very similar body of feudal law applicable to Normandy. About 1221 there appeared the Sachsenspiegel (Mirror of the Saxons), written by the German knight Eike von Repgau; it contained two parts, one on the Saxon Landrecht, or common law; the other on the Saxon Lehnrecht, or feudal law. (The Sachsenspiegel was the first lawbook written in German. It was preceded by a Latin edition, now lost.) 20

In addition, the three greatest Western monarchs of the last part of the twelfth century -- Henry II of England and Normandy ( 1154-1189), Philip Augustus of France ( 1180-1223), and Frederick Barbarossa of Germany ( 1152-1190) -- issued important laws regulating various feudal questions.

In the thirteenth and fourteenth centuries, treatises on feudal law were written by leading Romanists. Many books appeared that reported local customs -- in Denmark, Jutland, Normandy, Vermandois, Orleans, Anjou, and elsewhere. The great summa of English law attributed to Bracton, written in the first half of the thirteenth century, contained a very detailed analysis of feudal law; and in 1283 this was followed in France by the famous Customs of Beauvaisis by Beaumanoir.

Marc Bloch contrasts the place of feudal law in the legal structures of France, Germany, and England after the year 1200. In France the law of fiefs and of vassalage was woven into the whole legal fabric, so that it was impossible to distinguish between feudal and nonfeudal law. In Germany, feudal law was treated as a separate system whose rules were applicable only to certain estates or certain persons and were administered by special courts; not only at the manorial level or in the towns but also among the upper classes of the countryside many types of legal relations were governed by Landrecht (lex terrae, "law of the land") and not by Lehnrecht ("feudal law"). England was like France in that there was no separate body of feudal law erected out of the custom of the feudal classes; Landrecht and Lehnrecht were merged. However, as in Germany, a considerable part of the English common law -- that relating to rights in land-could be identified as feudal law, even though it was administered by royal courts and was technically part of the common law. 2_Bloch's analysis can be seen as a qualification and clarification of the thesis presented here concerning the systematization of feudal law in the eleventh and twelfth centuries. This systematization did not result in the creation of a body of law which operated independently of other bodies of law. Instead, all the secular legal systems -- feudal, manorial, mercantile, urban, and royal (common) -- overlapped one another. This was true even in Germany despite the division between the law of the

-311-

land and feudal law. Nevertheless, each body of law had its own character, its own logic: even though feudal and nonfeudal legal norms were interwoven in the French books of customary law and in Bracton's analysis of the law applicable in the English royal courts, feudal law still had its own coherent principles.

One of the most important integrating elements of feudal law was its combination of political and economic rights -- the right of government and the right of use and disposition of land.

The legal term used to express this combination was the Latin word dominium, which meant, on the one hand, something like lordship and, on the other hand, something like ownership. "Lordship" is the right word if it is understood to include jurisdiction, that is, the right to hold court and declare law. "Fief and justice -- it is all one," said Beaumanoir. ²² "Ownership" is also the right word if it is not restricted to the meaning it originally had when it was first used in the seventeenth century. Then it referred to an absolute, undivided, exclusive right over the thing owned. Feudal dominium, in contrast, was usually limited, divided, and shared in a variety of ways. A person could have certain rights in land valid against his lord, and the lord could have certain rights in the same land valid against his lord, as well as other rights valid against that lord's lord, who might be the king. The conflicting rights inhered in the land itself, which was conceived as a kind of legal entity: thus one parcel of land might be considered "servient" to another in the sense that services might be required to be transferred from it to the "dominant" parcel. Land, in fact, was not "owned" by anyone; it was "held" by superiors in a ladder of "tenures" leading to the king or other supreme lord. ("Tenure," derived from the Latin word tenere, "to hold," itself means "a holding.")

The concept of divided property, or multiple bearers of rights in the same land, is not a uniquely Western idea. The Western system of feudal property was unique, however, in its conception of the interrelationships of the various competing rights. A knight, for example, might have dominium over a parcel of land solely for his life, with such dominium to revert, at his death, to the lord who had granted him such a "life estate." Or the land might have been granted to the knight "and the heirs of his body," in which case the heirs, upon birth, might have a certain kind of "future interest" in the land.

Or the grant might be to Knight A for life and, on his death, to his brother, Knight B, if B survived A, but if B predeceased A then, on A's death, to his cousin, Knight C. This would create other kinds of "future interests" in the land for B and C. Such gifts of land (or of other property) designed to revert to the donor on the death of the donee, and the creation of various kinds of contingent interests in land to take effect at a future time, did not derive from either Roman law or Germanic law. The very idea of measuring property rights by their duration in time was largely an invention of the late

-312- eleventh and twelfth centuries in the West. This idea persisted long after the decline of feudalism; indeed, it has persisted in English and American land law to this day. What is involved is not merely a set of techniques for effectuating the devolution of property on death but also the inclusion of various persons, born and unborn, in the rights of possession, use, disposition, and control of property. The conscious entailment of future generations in the property regime was a characteristic example of the time sense of the Western legal tradition in the formative era of its development.

Together with the measurement of property interests ("estates") in land by their duration in time, and the allocation of such estates for future enjoyment ("future interests"), the distinctive legal concept of seisin, which spread through Europe in the late eleventh and twelfth centuries, made an enduring contribution to Western legal values as well as to Western legal institutions, concepts, and rules. Seisin has already been mentioned in connection with the development of the legal autonomy of vassals -- a vassal "seised" of the land had a right of action against anyone who "disseised" him, even his lord -Вand also in connection with the canon law of property, especially the law of spoliation. From the point of view of the development of the Western legal tradition as a whole, the importance of the concept of seisin lay in its interweaving of legal and factual elements.

It did not mean simply-or even necessarily -Вfactual occupation or physical control of the land; in this it differed from the older Roman concept of possession. Thus one could remain seised of land while one was away on a crusade or pilgrimage. Yet seisin did not mean simply -- or even necessarily -- a right of ownership. Thus the heir or grantee who had not yet entered upon the land did not yet have seisin of it. Seisin was, in effect, a legal right to continue in a factual situation, which right was derived from previously having been in that factual situation. ²³ It was a right of possession independent both of ownership and of contract-a concept unknown either to Germanic law or to the older Roman law. This idea of "Possessory right" -- not possession but right of possession -- has persisted in all Western legal systems to this day. It is particularly strong in English and American law.

The concept of seisin was a product partly of the feudal concept of divided ownership and partly of the canonist concept of due process of law, with its antipathy to force and self-help. A person seised of land, goods, or rights could not be ousted by force even by the true owners. This, too, not only formed a structural element of feudal law but also made an important and enduring contribution to Western legal consciousness.

Finally, feudal law was characterized by its conception of tort, or legal wrong, as a breach of a relationship. From an early time, it had been a

-313

rule of customary feudal law that if a vassal "broke faith" with his lord, the fief reverted ("escheated") to the lord, just as it escheated on the vassal's death or, at a later period, when there were no heirs. The Norman word for such a breach of faith was "felony." In England after the

Norman Conquest the most serious crimes came to be called felonies because they were considered to be breaches of the fealty owed by all people to the king as guardian of the peace of the realm. (The felon's land escheated to his lord, however, and only his chattels to the crown.) Apart from felonies, other criminal and civil wrongs_________ in England called "trespasses" ( Norman French for the Latin

transgressiones, "sins")____ were also conceived generally as breaches of relationships: for example,

relationships between landlords and tenants, between masters and servants, between bailors and bailees of goods.

<< | >>

↑

Source: Berman H.J.. Law and Revolution: The Formation of the Western Legal Tradition. Cambridge, Mass. : Harvard University Press,1983. вЂ” 657 p.. 1983

INTEGRATION

More on the topic INTEGRATION: