Feudalism

FEUDALISM (from Late Lat. feodum or feudum, a fee or fief ; see FEE). In every case of institutional growth in history two things are to be distinguished from the beginning for an understanding of the process and its results. One of these is the change of conditions in the political or social environment which made growth necessary. The other is the already existing insti tutions which began to be transformed to meet the new needs. In studying the origin and growth of political feudalism, the dis tinction is easy to make. The prevailing need of the later Roman and early mediaeval society was protection—protection against the sudden attacks of invaders or revolted peasants, against the unwarranted demands of government officers, or even against the legal but too heavy exactions of the government. The protection which the government normally furnished, the weak freeman and the small landowner could no longer obtain. He must seek protec tion wherever he could get it, and pay the price demanded for it. These are the great social facts—the failure of government to per form one of its most primary duties, the necessity of finding some substitute in private life—extending through the whole formative period of feudalism.

Roman Origins.—The institutions which the need of pro tection seized upon had both long existed in the private, not public, relations of the Romans. One of them related to the person, the other related to land. There are thus distinguished at the beginning those two great sides of feudalism which re mained to the end more or less distinct. The personal institution needs little description. It was the Roman patron and client relationship which had remained in the days of the empire, in later times less important perhaps legally than socially. This institution, the patrocinium, was firmly enough entrenched to survive the German conquest, and to be continued by the con querors. In its new use, alike in the later Roman and the early German state, the landless freeman who could not support himself offered his services, those proper to a freeman, to some power ful man in return for shelter and support. This transaction, called commendation, gave rise in the German state to a written con tract which related the facts and provided a penalty for its vio lation. It created a relationship of protection and support on one side, and of free service on the other.

The other institution, relating to land, was that known to the Roman law as the precarium, because of the prayer of the sup pliant by which the relationship was begun. The precarium was a form of renting land not intended primarily for income, but for use when the lease was made from friendship, for example, or as a reward, or to secure a debt. Legally its characteristic feature was that the lessee had no right of any kind against the grantor. The owner could terminate the relation at any time, for any reason, or for none at all, and the heirs of neither party were bound by it.i The legal character of this transaction is summed up in a well-known passage in the Digest (xliii. 26. 12) which may be paraphrased as follows :—The precarium tenant may employ the interdict against a third party, because he cannot use the ordinary civil action, his holding being not a matter of business but rather of favour and kindness.

As used for protection in later Roman days the precarium gave rise to what was called the commendation of lands, patro cinium fundorum. The poor landowner surrendered to his power ful neighbour the ownership of his lands, which he then received back as a precarium—gaining protection during his lifetime at the cost of his children, who were left without legal claim and compelled to make the best terms they could.' Applied to this use the precarium found extensive employment in the last age of the empire. The government looked on the practice with dis favour, because it transferred large areas from the easy access of the state to an ownership beyond its reach. The laws repeatedly forbade it under increasing penalties, but it could not be stopped.

Frankish Development.—These practices the Frankish con querors of Gaul found in full possession of society, and they seem to have made them their own without material change. The patrocinium they could understand by the existence of a some what similar institution among themselves, the comitatus, de scribed by Tacitus. The comitatus made contributions of its own to future feudalism, to some extent to its institutional side, largely to the ideas and spirit which ruled in it. Probably the cere mony which grew into feudal homage, and the oath of fealty, cer tainly the honourable position of the vassal and his pride in the relationship, the strong tie which bound lord and man, and the idea that faith and service were due on both sides in equal measure, may be traced to German sources. But we must not forget that the origin of the vassal relationship, as an institution, is to be found on Roman soil.

To the

precarium German institutions offered no close parallel. The advantages which it afforded were obvious, and this side of feudalism developed as rapidly after the conquest as the personal. The new German noble was as eager to extend his lands and to increase the numbers of his dependants as the Romans had been. The new German government furnished no better protection from local violence, nor was it able any more effectively to check the practices which were creating feudalism. Precarium and patro cinium easily passed from the Roman empire to the Frankish kingdom, and became firmly rooted in the new society. Up to this point we have seen only the small landowner and the landless man entering into these relations. Feudalism could not be estab lished, however, until the great of the land had begun to enter the clientage of others and to hold lands by the precarium tenure. The first step was quickly taken. The same class continued to furnish the king's men, and to form his household and body-guard whether the relation was that of the patrocinium or the comitatus, and to be made noble by entering into it. It was later that they became clients of one another, and in part at least as a result of their adoption of the precarium tenure. In this latter step the influence of the Church rather than of the king seems to have been effective. The large estates which pious intentions had be stowed on the Church it was not allowed to alienate. It could most easily make them useful by employing the precarium tenure. On the other side, the great men were ready without persuasion to annex portions of these estates for their own on the easy terms of this tenure, not always indeed observed by the holder, or able to be enforced by the Church. The employment of the precarium by the Church seems to have been one of the surest means by which this form of landholding was carried over from the Romans to the Frankish period and developed into new forms. It came to be made by degrees the subject of written contract, by which the rights of the holder were more definitely defined and protected than had been the case in Roman law. The length of time for which the holding should last came to be specified, at first for a term of years and then for life, and some payment to the grantor was provided for, not pretending to represent the economic value of the land, but only to serve as a mark of his continued ownership.

The Carolingian Age.

These changes characterize the Merovingian age, which had practically ended, however, before these two institutions showed any tendency to join. Nor had the king up to that time exerted any apparent influence on the pro cesses that were going forward. It was the advent of the Carolin gian princes that carried these institutions a stage further forward. Making their way up from a position among the nobility to be the rulers of the land, and finally to supplant the kings, the Carolingians had especial need of resources from which to pur chase and reward faithful support. The fundamental principle of the Frankish military system, that the man served at his own expense, was still unchanged. It had indeed begun to break down under the strain of frequent and distant campaigns, but it was long before it was changed as the recognized rule of mediaeval service. If now, in addition to his own expenses, the soldier must provide a horse and its keeping, the system was likely to break down. To solve this problem the early Carolingian princes, especially Charles Martel, grasped at the land of the Church. The means devised to permit its use were found in the precarium tenure. Keeping alive, as it did, the fact of the grantor's owner ship, it did not in form deprive the Church of the land. Recog nizing that ownership by a small payment not corresponding to the value of the land, it left the larger part of the income to meet the need which had arisen. At the same time undoubtedly the new holder of the land, if not already the vassal of the prince, was obliged to assume an obligation of service with a mounted force when called upon. This expedient gave rise to the numerous precariae verbo regis, of the Church records, and to the condem nation of Charles Martel in the visions of the clergy to worse difficulties in the future life than he had overcome in this. The most important consequences of the expedient, however, was the bringing together of the two sides of feudalism, vassalage and benefice, as they were now commonly called. It emphasized military service as an essential obligation of the vassal; and it spread the vassal relation between individual proprietors and the sovereign.

During the reign of Charlemagne and the later Carolingian age continued necessities, military and civil, forced the kings to recognize these new institutions more fully, even when standing between the government and the subject, intercepting the public duties of the latter. The incipient feudal baron had not been slow to take advantage of the break-down of the old German military system. The poor Frank could escape the ruinous de mands of military service only by submitting himself and his lands to the count, who did not hesitate on his side to force such submission. Charlemagne legislated against this tendency, trying to make it easier for the poor freeman to fulfil his military duties directly to the state, and to forbid the misuse of power by the rich. Finally the king was compelled to recognize existing facts, to lay upon the lord the duty of producing his men in the field and to allow him to appear as their commander. This completed the transformation of the army into a vassal army; it completed the recognition of feudalism by the state, as a legitimate relation between different ranks of the people; and it recognized the transformation in a great number of cases of a public duty into a private obligation.

In the meantime another institution had grown up in this Franco-Roman society, which probably began and certainly assisted in another transformation of the same kind. This is the immunity. Suggested probably by Roman practices, it received a great extension in the Merovingian period, at first and especially in the interest of the Church, but soon of lay land-holders. By the grant of an immunity to a proprietor the royal officers, the count and his representatives, were forbidden to enter his lands to exer cise any public function there. The duties which the count should perform passed to the proprietor, who now represented the gov ernment for all his tenants free and unfree. Apparently no modification of the royal rights was intended by this arrangement, but the beginning of a great change had really been made. The king might still receive the same revenues and the same services from the district held by the lord as formerly, but for their payment a private person in his as overlord was now responsible. In the course of a long period characterized by a weak central government, it was not difficult to enlarge the rights which the lord thus obtained, to exclude even the king's personal authority from the immunity, and to translate the duties and payments which the tenant had once owed to the state into obligations which he owed to his lord, even finally into incidents of his tenure. The most important public function whose trans formation into a private possession was assisted by the growth of the immunity was the judicial. The lord's court gradually took the place of the public court in civil, and even by degrees in criminal cases. The plaintiff, even if he were under another lord, was obliged to sue in the court of the defendant's lord, and the portion of the fine for a breach of the peace which should have gone to the state went in the end to the lord.

The transfer of the judicial process, and of the financial and administrative sides of the government as well, into private possession, was not, however, accomplished entirely by the road of the immunity. As government weakened after the strong days of Charlemagne, and disorder, invasion, and the difficulty of intercommunication tended to throw the locality more and more upon its own resources, the officer who had once been the means of centralization, the count, was able to exercise the powers which had been committed to him as an agent of the king, as if they were his own private possession. Nor was the king's aid lacking to this 'method of dividing up the royal authority, any more than to the immunity, for it became a frequent practice to make the adminis trative office into a fief, and to grant it to be held in that form of property by the count. In this way the feudal county, or duchy, formed itself, corresponding in most cases only roughly to the old administrative divisions of the state.

In its earliest stage of growth the feudal system was that of the private possession only. For protection the great landowner forced his smaller neighbours to become his dependants in return under a great variety of forms, but especially developing thereby the precarium land tenure and the patrociniurn personal service, and organizing a private jurisdiction over his tenants, and a private army for defence. Finally he secured from the king an immunity which excluded the royal officers from his lands and made him a quasi-representative of the state. In the meantime his neighbour the count had been following a similar process. His right to exact military, financial and judicial duties for the state he had used to force men to become his dependants, and then he had stood between them and the state, freeing them from burdens which he threw with increased weight upon those who still stood outside his personal protection. The kings first adopted for them selves some of the forms and practices which had thus grown up, and by degrees recognized them as legally proper for all classes. It proved to be easier to hold the lord responsible for the public duties of all his dependants because he was the king's vassal and by attaching them as conditions to the benefices which he held, than to enforce them directly upon every subject. When this stage was reached the formative age of feudalism may be con sidered at an end. When the government of the state had entered into feudalism, and the king was as much lord as king; when the vassal relationship was recognized as a proper and legal founda tion of public duties; when the two separate sides of early feudalism were united as the almost universal rule, so that a man received a fief because he owed a vassal's duties, or looked at in the other and finally prevailing way, that he owed a vassal's duties because he had received a fief ; and finally, when the old idea of the temporary character of the precarium tenure was lost sight of, and the right of the vassal's heir to receive his father's holding was recognized as the general rule—then the feudal sys tem may be called full grown. We shall not be far wrong if we place the end of its formative age near the beginning of the loth century.

Results in England.

The growth which we have traced took place within the Frankish Empire. In Anglo-Saxon England pre carium and patrocinium were lacking. Certain forms of personal commendation did develop, certain forms of dependent land tenure came into use, but these were not characteristic of the actual line of feudal descent. Scholars are not yet agreed as to what would have been their result if their natural development had not been cut off by the violent introduction of Frankish feudalism with the Norman conquest, whether the historical feudal system, or a feudal system in the general sense. To the writer it seems clear that the latter is the most that can be asserted. They were forms which may rightly be called feudal, but only in the wider mean ing in which we speak of the feudalism of Japan, or of Central Africa, not in the sense of i 2th-century European feudalism; Saxon commendation may rightly be called vassalage, but only as looking back to the early Frankish use of the term for many vary ing forms of practice, not as looking forward to the later and more definite usage of completed feudalism ; and such use of the terms feudal and vassalage is sure to be misleading. There is no trace of the distinctive marks of Frankish feudalism in Saxon England, not where military service may be thought to rest upon the land, nor even in the rare cases where the tenant seems to some to be made responsible for it, for between these cases as they are de scribed in the original accounts, legally interpreted, and the feudal conception of the vassal's military service, there is a great gulf.

The Completed System.

The temptation to use the larger part of any space allotted to the history of feudalism for a dis cussion of origins does not arise alone from greater interest in that phase of the subject. It is almost impossible even with the most discriminating care to give a brief account of completed feudalism and convey no wrong impression. We use the term "feudal sys tem" for convenience sake, but with a degree of impropriety if it conveys the meaning "systematic." Feudalism in its most flourish ing age was anything but systematic. Great diversity prevailed everywhere, and different facts or customs are found in every lordship. But underlying all the apparent confusion of fact and practice were certain fundamental principles and relationships, which were alike everywhere. The chief of these are : the relation of vassal and lord ; the principle that every holder of land is a ten ant and not an owner, until the highest rank is reached, sometimes even the conception rules in that rank; that the tenure by which a thing of value is held is one of honourable service, not intended to be economic, but moral and political in character ; the principle of mutual obligations of loyalty, protection and service binding together all the ranks of this society from the highest to the low est ; and the principle of contract between lord and tenant, as determining all rights, controlling their modification, and forming the foundation of all law.

The foundation of the feudal relationship proper was the fief, which was usually land, but might be any desirable thing, as an office, a revenue in money or kind, the right to collect a toll, or operate a mill. In return for the fief, the man became the vassal of his lord ; he knelt before him, and, with his hands between his lord's hands, promised him fealty and service; he rose to his feet and took the oath of fealty which bound him to the obligations he had assumed in homage; he received from his lord ceremonial investiture with the fief. The faithful performance of all the duties he had assumed in homage constituted the vassal's right and title to his fief. So long as they were fulfilled, he, and his heir after him, held the fief as his property, practically and in relation to all under tenants as if he were the owner. In the ceremony of homage and investiture, which is the creative contract of feudal ism, the obligations assumed by the two parties were determined, as a rule, by local custom. In detail the vassal's services differed widely, but they fall into two classes, general and specific. The general included all that might come under the idea of loyalty, seeking the lord's interests, keeping his secrets, betraying the plans of his enemies, protecting his family, etc. The specific services covered military service, which included appearance in the field on summons with a certain force, often armed in a specified way, and remaining a specified time. It often covered also the duty of guarding the lord's castle, and of holding one's own castle subject to the plans of the lord for the defence of his fief. Hardly less characteristic was court service, which included the duty of help ing to form the court on summons, of taking one's own cases to that court instead of to some other, and of submitting to its judg ments. The duty of giving the lord advice was often fulfilled in sessions of the court, and in these feudal courts the obligations of lord and vassal were enforced, with an ultimate appeal to war. ' Under this head may be enumerated the financial duties of the vassal, which were either intended to mark the vassal's tenant relation, like the relief, or to be a part of his service, like the aid, that is, he was held to come to the aid of his lord in a case of financial as of military necessity. The relief was a sum paid by the heir for the lord's recognition of his succession. The aids were paid on a few occasions, determined by custom, where the lord was put to unusual expense, as for his ransom when captured by the enemy, or for the knighting of his eldest son. The most lucra tive of the lord's rights were wardship and marriage.

j Ideally regarded, feudalism covered Europe with a network of these fiefs, rising gradually from the smallest, the knight's fee, at the bottom, to the king at the top, who was the supreme land owner, or who held the kingdom from God. Actually not even in the most regular of feudal countries, like England or Germany, was there any fixed gradation. A knight might hold directly of the king, a count of a viscount, a bishop of an abbot, or the king himself of one of his own vassals, or even of a vassal's vassal, and in return his vassal's vassal might hold another fief directly of him.

The Government of Feudal Countries.

It is now possible perhaps to get some idea of the way in which the government of a feudal country was operated. The early German governments whose chief functions, military, judicial, financial, legislative, were carried on by the freemen of the nation, and were performed as duties owed to the community for its defence and sustenance, had given way to new forms of organization in which these con ceptions had not entirely disappeared, but in which the vast majority of cases a wholly different idea of the ground of service and obligation prevailed. The members of the feudal court met, not to fulfil a duty owed to the community, but a private obliga tion which they had assumed in return for the fiefs. The feudal state was one in which, as it has been said, private law had usurped the place of public law. Public duty had become private obligation. To understand the feudal state it is essential to realize that all sorts of services, which men ordinarily owe to the public or to one another, were translated into a form of rent paid for the use of land, and defined and enforced by a private contract. In every feudal country, however, something of the earlier conception survived. A general military levy was occasionally made. Some thing like taxation occasionally occurred, though the government was usually sustained by the scanty feudal payments, by the proceeds of justice and by the income of domain manors. About the office of king more of this earlier conception gathered than elsewhere in the state, and gradually grew, aided not merely by traditional ideas, but by the active influence of the Bible, and soon of the Roman law. The kingship formed the nucleus of new governments as the feudal system passed away.

Actual government in the feudal age was primitive and un differentiated. Its chief and almost only organ, for kingdom and barony alike, was the curia—a court formed of the vassals. This acted at once and without any consciousness of difference of function, as judiciary, as legislature, and as council, and it exer cised final supervision and control over revenue and administration. Almost all the institutions of modern states go back to the curia regis, branching off from it as the growing complexity of business forced differentiation of function and personnel. In action it was an assembly court, deciding all questions by discussion and the weight of opinion, though its decisions obtained their legal validity by the formal pronunciation of the presiding member, i.e., of the lord whose court it was. In a government of this kind the essential operative element was the baron. So long as the government remained dependent on the baron, it remained feudal in its character. Feudalism disappeared as the organization of society, when a professional class arose to form the judiciary, when the increased circulation of money made regular taxation possible and enabled the government to buy military and other services, and when better means of intercommunication and the growth of common ideas made a wide centralization possible and likely to be permanent. In nearly all the states of Europe the end of the feudal age was reached about the close of the i3th century.

Decline and Survivals.

As feudalism passed into decline, its customs tended to crystallize into fixed forms. At the same time a class of men arose interested in these forms for their own sake, professional lawyers or judges, who wrote down for their own and others' use the feudal usages with which they were familiar. The great age of these codes was especially the second half of the 13th century. The codes in their turn tended still further to harden these usages into fixed forms, and we may date from the end of the i3th century an age of feudal law regulating especially the holding and transfer of land, and much more uni form in character than the law of the feudal age proper. This was particularly the case in parts of France and Germany where feudalism continued to regulate the property relations of lords and vassals longer than elsewhere, and where the underlying economic feudalism remained in large part unchanged.

Feudalism formed the starting-point also of the later social nobilities of Europe. They drew from it their titles and ranks and many of their regulative ideas, though these were formed into more definite and regular systems than ever existed in feudalism proper. It was often the policy of kings to increase the social privileges and legal exemptions of the nobility while taking away all political power, so that it is necessary in the history of institutions to distinguish sharply between these nobili ties and the feudal baronage proper. It is only in certain backward parts of Europe that the terms feudal and baronage in any tech nical sense can be used of the nobility of the 15th century.

(G. B. A.; X.) BIBLIOGRAPHY.-For more detailed information see ENGLISH LAW; Bibliography.-For more detailed information see ENGLISH LAW; FRENCH LAW AND INSTITUTIONS ; VILLENAGE ; MANOR ; SCUTAGE ;