The Origins of Feudalism

One of the reasons why the Germanic kings wielded less power than the Roman emperors was because the old hierarchical relationship which singled out the emperor as the representative of public authority was replaced, in the case of the Germanic kingdoms, by a series of interpersonal, private accords between the king and his most important subjects: the heads of clans or lineages (sippe), which could challenge the crown, as royal succession was based on election rather than hereditary principle.

The Germanic kings, thus, struggled to be considered superiors in the way the Roman emperor had been because they had to grapple with the nobles of their kingdoms, to whom they often entrusted territorial government. This important transformation led to a specific form of social organization that historians have called feudalism? which, from the perspective of constitutional history, Strayer (2005, 63) has described as a type of government in which political power was considered to be a private prerogative and asset wielded by a whole series of local lords.

7.1.1 The Administrative Shortcomings of the Carolingian Monarchy

If the Germanic kingdoms’ existence was precarious, this was in large part because of the disappearance of the Romans’ notion of law and public affairs, arising from the fact that the Germanic kings lacked an administrative apparatus of the type

² As Ganshof (1996, xv-xvi) indicates, the word “feudalism” (Feudalismus, Lehnswesen, fe odalite), has two essential meanings. In a social and political sense, feudalism is a form of society characterized by the development—carried to an extreme—of the element of personal dependence in society, with a specialized military class occupying the upper echelons of the social scale; an extreme subdivision of rights pertaining to land ownership; a graded system of rights over land, created by this subdivision and generally corresponding to degrees of personal dependence; and, finally, a distribution of political authority amongst a hierarchy of persons exercising in their own interest powers normally attributed to the state and which are often derived from its disintegration or weakness.

However, feudalism also has a “legal meaning”, as it may be regarded as a body of institutions creating and regulating the obligations of obedience and service (especially military), between a free man (vassal) and his superior (lord), by which the latter undertakes obligations of protection and maintenance with regard to his vassal. The obligation of maintenance usually, entailed the granting to his vassal of a unit of land known as a “fief”. These two meanings of the word “feudalism” are not, of course, unrelated to each other, but rather closely intertwined. When we speak of feudal society, the fief—which is related to both meanings—was the most important element in the graded system of rights over land upon which this type of society was based. afforded by the extensive imperial bureaucracy of the Dominate. As Ganshof (1996, 3) points out, in the Frankish kingdom, the state was largely unable to maintain the peace or secure the safety of its inhabitants because its structure was too primitive, and the officials in its service too few in number and too unreliable for them to successfully carry out basic government functions. Free men who felt insecure, turned to powerful neighbors (magnates), who provided them with protection in exchange for some form of service (domestic, economic, military, or all three) through the legal instrument of commendation (commendatio). The person commending himself was termed a “vassal” (vassus).

The concept of res publica existing in the ancient Roman Empire was supplanted in the Germanic kingdoms by a patrimonial conception of royalty. There was, consequently, no official distinction between public and private revenue, which meant that there was no public treasury (the ancient Roman fiscus), and the costs of the kingdom’s government and administration were covered by the sovereign’s private wealth. As Germanic kings did not receive regular taxes, they were forced to depend on the spoils of war^{^[257]} and, above all, what their lands produced, with the quality of their administration varying widely (James 1991, 182-191).

Although the royal descendants of Charles Martel initially held an abundance of lands, which were better managed than during Merovingian times, the distances involved and the difficulty of transport made it impossible to establish a centralized system of government and administration. Charlemagne, thus, created the position of the missi dominici, royal representatives he charged with the task of monitoring the conduct of local authorities (Barbero 2004, 162-166). This oversight mechanism, however, was inadequate because the missi could not be everywhere at all times.^{^[258]} Thus, the Frankish kings came up with a way to control those who ruled areas far from the court while ensuring their loyalty: vassaldom.

7.1.2 Vassaldom: A Formula for Permanent Control over Local Authorities

The vassal relationship was one freely entered into between a lord (dominus, senior), generally rich and powerful, and a vassal (vassus, homo), usually a free man of humbler means. The contractual relationship was established for life, and bound the parties to respect a set of mutual rights and obligations. The lord was obliged to maintain and protect his vassal, while the latter pledged to serve his lord, particularly by providing him with military defense. The vassal could be maintained by directly providing him with housing, clothing, food, and a share of the spoils, when relevant. However, it became increasingly frequent for vassals to be indirectly maintained as their lords ceded lands to them for the duration of their relationship.^{^[259]}

In a society in which agriculture was the prevailing economic activity and the most essential form of wealth, it became expedient to bestow on vassals sufficient land to assure their proper maintenance. If land could not be given in full ownership (proprietas), its use was more frequently granted for long periods of “tenement”. Via this practice, which the Frankish kings borrowed from the Late Roman Empire, tenants acquired what in Roman Law was considered a right over a thing belonging to another: ius in re aliena (Ganshof 1996, 9).

During the Carolingian period, land transferred in this way was called beneficium,^{^[260]} though it would ultimately be known as feudum^{^[261]}—a term whose historical significance will be obvious to the reader.

Lacking officials to assure sound administration throughout their kingdoms, the Frankish kings devised the practice of ceding to their most eminent subjects, the nobles, the usufruct of lands held by the crown in exchange for their commitment to govern and administrate them on the king’s behalf and provide the monarchs with military assistance when summoned to do so (Barbero 2004, 259-260).^{^[262]} Their geographical isolation led to most of these nobles ultimately enjoying considerable autonomy, which spurred the kings to require the lords to which they ceded lands to take strictly personal pledges of loyalty and allegiance.^{^[263]}

7.1.3 The Limits of the Feudal Relationship: Its Lifelong Character

This system of securing men-at-arms by entrusting them with the maintenance of royal lands while granting them the wealth generated by their yields, was widely employed by the Carolingian kings, and to good effect, as in this way they were able to fund the creation of the era’s most powerful armies.^{^[264]} This practice allowed Charles Martel to defeat the Muslims at Poitiers in 732, and his son Pepin the Short, to intervene in Italy 20 years later on behalf of the papacy, thereby ensuring his legitimate occupation of the French throne thanks to the Church’s support.

The Carolingian kings, moreover, tended to name their vassals the holders of the ecclesiastical and civil posts, called for to govern the lands ceded them, thus killing two birds with one stone, simultaneously assuring military service, and sealing royal control over the government and administration of the territory. The practice of vassaldom favored the kings not only because vassals swore allegiance to the monarch, but because the feudal covenant was for life, but not hereditary; upon the vassal’s death the king could reassign the fiefdom to someone else.

7.1.4 The Consuetudinary and Judicial Regulation of Vassal Relations

As the notion of public power had dissolved, the feudal system was not initially set down in laws, for the king lacked the authority and political power to establish legal precepts. Crowned by bishops, Christian monarchs were primarily considered “righteous kings” (roi justicier), whose main mission was to defend the immemorial order created by God—an order at the time defined by tradition and custom. Vassal relationships were part of this ancient order, and this is why time-honored practices defined the legal features of feudal pacts, through the verdicts of feudal courts ruling on conflicts arising between lords and vassals (Ganshof 1996,158-159).

Kings generally, did not enjoy a preeminent position in these tribunals which, as a result of the contractual nature of feudal pacts, were composed of the most important feudal lords, who considered themselves on a level with the king (Cour des pairs). In some cases, their judicial decisions were eventually recorded and collected to serve as an example and precedent in the event of future conflicts, leading to the appearance of texts making up “feudal law”.^{^[265]}

7.2

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Source: Aguilera-Barchet Bruno. A History of Western Public Law. Between Nation and State. Springer,2015. — 788 p.. 2015

The Origins of Feudalism

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