Feudal Law
Feudal law comprised the body of rules governing the relationship between a feudal lord and his vassal and the tenure by which the vassal held the land he received from the lord.
The system originated in Germanic customary law and was developed in France during the Carolingian era. The three greatest monarchs of the late twelfth and early thirteenth centuries—Henry II of England and Normandy (1154-1189), Philip Augustus of France (1180-1223) and Frederick Barbarossa of Germany (1152-1190)—all promulgated important laws dealing with diverse feudal matters. In the thirteenth and fourteenth centuries, treatises on feudal law were composed by Romanist jurists and several works appeared that recorded local customs in various parts of Europe. It is important to note here that in France and England feudal law was woven into the whole legal fabric, whilst in Germany it was treated as a distinct system whose rules were applicable only to certain estates or individuals and were administered by special courts. However, in all three countries feudal law did not operate independently of other bodies of law: all secular systems (feudal, mercantile, urban and royal) influenced and overlapped one another.One of the most distinctive features of feudal law was its combination of political and economic rights: the right of government, the right of jurisdiction and the right to use and dispose of land.[733] The point of departure was the legal situation that arose when a person, the vassal, received a piece of land from the lord as a beneficium and, in return, undertook to provide personal service, usually of a military character. The personal bond that was created entailed duties as well as rights for both sides: the vassal owed the lord whatever good faith required, usually aid and counsel (auxilium and consilium), and the lord in his turn undertook the duty to protect and maintain the vassal.
The term tenure is used to describe the grounds of a continuous possession of land, or of anything that could be equated with land.[734] In a purely feudal society land was not owned by anyone; it was held by superiors in a ladder of tenures leading to the king as the supreme lord. Thus, a person could have certain rights in land valid against his lord, and the lord could have certain rights in the same land against his lord, as well as other rights valid against that lord’s lord, who might be the king. The rules concerning feudal hierarchy and rights of succession were an important part of feudal law. Moreover, from an early time, it had been recognized as a rule of customary feudal law that if a vassal broke faith with his lord the fief reverted to the lord.[735] Important rights associated with feudalism were the right to exercise governmental and administrative powers, and the right to hold court and declare the law. Besides the immunities in matters of taxation and jurisdiction granted to local lords, the later also possessed powers of policing, judging and inflicting punishment in the territories under their control, especially during the ninth and tenth centuries. In Germany where, as previously noted, feudal law (Lehnrecht) remained distinct from the law of the land (Landrecht), the feudal courts developed and operated side by side with the other courts. By contrast, in France legal procedure became totally feudalized after the death of Charlemagne in the early ninth century.[736]The move towards the systematization of feudal law began in the twelfth century, when the Lombard feudal law that applied in Italy became the subject of academic inquiry. The Lombard sources of law, such as the Lombarda and the Liber Papiensis, were explained and commented on by jurists at Pavia and Bologna and around 1150 a collection of feudal law, the Libri Feudorum, appeared in Milan.[737] In the period that followed the study of feudal law became part of the study of Roman law and the Libri Feudorum were commented on and systematized by several legal scholars, such as Pillius of Medicina, James de Ardizzone and Accursius.
The latter produced an authoritative gloss to the Libri in the 1220s, which were eventually included in the final volume of the Corpus Iuris Civilis, which contained Justinian’s Novels. In this way, the main body of feudal law became part of the libri legales, the legal books of the learned law, and continued to be studied by scholars and used by practitioners until the end of the sixteenth century or even later.[738]Once feudal law became systematized, the specificity of its norms increased and the uniformity of its general principles gradually overshadowed local differences. The reification of the relevant rights and obligations superseded the personal aspects of the lord-vassal relationship and also gave the vassal a greater degree of economic autonomy in managing his fief. Special emphasis was now placed on the reciprocity of the rights and obligations between the parties, as well as on the participation of the parties in the proceedings through which disputes over such rights and obligations were adjudicated. In a word, the characteristic features of feudal law were formalized as elements of its autonomous development in time. Nevertheless, in comparison with Roman and canon law, feudal law was less systematic, less integrated and less scientific. It was largely customary law and as such was treated with more skepticism and as more open to correction and even repudiation than the learned law pertaining to Justinian’s main Corpus and Gratian’s Decretum.[739]
7.7
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