Feudalism

Feudalism (from Late Lat. feodum or feudum, a fee or fiel; see Fee). In every case of institutional growth in history two things are to be clearly distinguished from the beginning for a correct 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 institutions which began to be transformed to meet the new needs. In studying the origin and growth of political feudalism, the distinction is easy to make. The all-prevailing need of the later Roman and early medieval society was protection—protection against the sudden attacks of invading tribes or revolted peasants, against oppressive neighbours, against the unwarranted demands of government officers, or even against the legal but too heavy exactions of the government itself. In the days of the decaying empire and of the chaotic German settlement, the weak freeman, the small landowner, was exposed to attack in almost every relation of life and on every side. The protection which normally it is the business of government to furnish he could no longer obtain. He must seek protection elsewhere wherever he could get it, and pay the price demanded for it. This is the great social fact—the failure of government to perform one of its most primary duties, the necessity of finding some substitute in private life—extending in greater or less degree through the whole formative period of feudalism, which explains the transformation of institutions that brought it into existence. Similar conditions have produced an organization which may be called feudal, in various countries, and in widely separated periods of history. While these different feudal systems have shown a general similarity of organization, there has been also great variation in their details, because they have started from different institutions and developed in different ways. The feudal system with which history most concerns itself is that of medieval western Europe, and it is that which will be here described.

The institutions which the need of protection seized upon when it first began to turn away from the state were twofold. They had both long existed in the private, not public, relations of the Romans, and they had up to this time Roman origins. shown no tendency to grow. One of them related to the person, to the man himself, without reference to property, the other related to land. There are thus distinguished at the beginning those two great sides of feudalism which remained to the end of its history more or less distinct, the personal relation and the land relation. The personal institution needs little description. It was the Roman patron and client relationship which had remained in existence into the days of the empire, in later times less important perhaps legally than socially, and which had been reinforced in Gaul by very similar practices in use among the Celts before their conquest. The description of this institution which has come down to us from Roman sources of the days when feudalism was beginning is not so detailed as we could wish, but we can see plainly enough that it met a frequent need, that it was called by a new name, the patrocinium, and that it was firmly enough entrenched in usage to survive the German conquest, and to be taken up and continued by the conquerors. In its new use, alike in the later Roman and the early German state, the landless freeman who could not support himself went to some powerful man, stated his need, and offered his services, those proper to a freeman, in return for shelter and support. This transaction, which was called commendation, gave rise in the German state to a written contract which related the facts and provided a penalty for its violation. 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, a name derived from one of its essential features through all its history, the prayer of the suppliant 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 call in his land and terminate the relation at any time, for any reason, or for none at all. Even a definite understanding at the outset that the lease might be enjoyed to a specified date was no protection.1 It followed of course that the heir had no right in the land which his father held in this way, nor was the heir of the donor bound by his father’s act. The legal character of this transaction is summed up in a well-known passage in the Digest:—Interdictum de precariis merito introductum est, quia nulla eo nomine juris civilis actio esset, magis enim ad donationes et beneficii causam, quam ad negotii contracti spectat precarii conditio.2 This 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. It should be noted that from its very beginning the land relationship of feudalism was not created primarily for the grantor’s income, but that it emphasized in the most striking way his continued ownership.

As used for protection in later Roman days the precarium gave rise to what was called the commendation of lands, patrocinium fundorum. The poor landowner, likely to lose all that he had from one kind of oppression or another, went to the great landowner, his neighbour, whose position gave him immunity from attack or the power to prevent official abuses, and begged to be protected. The rich man answered, I can only protect my own. Of necessity the poor man must surrender to his powerful 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.3 Applied to this use the precarium found extensive employment in the last age of the empire. The government looked on the practice with great disfavour, 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 clearly it could not be stopped. The motive was too strong on both sides—the need of protection on one side, the natural desire to increase large possessions and means of self-defence on the other.

These practices the Frankish conquerors of Gaul found in full possession of society when they entered into that province. They seem to have understood them at once, and, like much else Roman, to have made them their own without Frankish development. material change. The patrocinium they were made ready to understand by the existence of a somewhat similar institution among themselves, the comitatus, described by Tacitus. In this institution the chief of the tribe, or of some plainly marked division of the tribe, gathered about himself a band of chosen warriors, who formed a kind of private military force and body-guard. The special features of the institution were the strong tie of faith and service which bound the man, the support and rewards given by the lord, and the pride of both in the relationship. The patrocinium might well seem to the German only a form of the comitatus, but it was a form which presented certain advantages in his actual situation. The chief of these was perhaps the fact that it was not confined to king or tribal chief, but that every noble was able in the Roman practice to surround himself with his organized private army. Probably this fact, together with the more general fact of the absorption in most things of the German in the Roman, accounts for the substitution of the patrocinium for the comitatus which took place under the Merovingians.

This change did not occur, however, without some modification of the Roman customs. 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 ceremony which grew into feudal homage, and the oath of fealty, certainly the honourable position of the vassal and his pride in the relationship, the strong tie which bound lord and man together, and the idea that faith and service were due on both sides in equal measure, we may trace to German sources. But we must not forget that the origin of the vassal relationship, as an institution, is to be found on Roman and not on German soil. The comitatus developed and modified, it did not originate. Nor was the feudal system established in any sense by the settlement of the comitatus group on the conquered land. The uniting of the personal and the land sides of feudalism came long after the conquest, and in a different way.

To the precarium German institutions offered no close parallel. The advantages, however, 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 the size of his lands and to increase the numbers of his dependants as the Roman 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; indeed for a long time it made no attempt to do so. Precarium and patrocinium easily passed from the Roman empire to the Frankish kingdom, and became as firmly rooted in the new society as they had ever been in the old. Up to this point we have seen only the small landowner and the landless man entering into these relations. Feudalism could not be established, however, until the great of the land had adopted them for themselves, and had begun to enter the clientage of others and to hold lands by the precarium tenure. The first step towards this result was easily and 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 bestowed on the Church it was not allowed to alienate. It could most easily make them useful to gain the influence and support which it needed, and to provide for the public functions which fell to its share, by employing the precarium tenure. On the other side, the great men coveted the wide estates of bishop and abbot, and were ready without persuasion to annex portions of them to 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.

These changes characterize the Merovingian age of Frankish history. That period had practically ended, however, before these two institutions showed any tendency to join together as they were joined in later feudalism. Nor had the king up to that time exerted any apparent influence on the processes that were going forward. Grants of land of the Merovingian kings had carried with them ownership and not a limited right, and the king’s patrocinium had not widened in extent in the direction of the later vassal relation. It was the advent of the Carolingian princes and the difficulties which they had to overcome 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 purchase and reward faithful support. This need was greatly increased when the Arab attack on southern Gaul forced them to transform a large part of the old Frankish foot army into cavalry.4 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 medieval 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 altogether. It was this problem which led to the next step. To solve it the early Carolingian princes, especially Charles Martel, who found the royal domains exhausted and their own inadequate, grasped at the land of the Church. Here was enough to endow an army, if some means could be devised to permit its use. This means was found in the precarium tenure. Keeping alive, as it did, the fact of the grantor’s ownership, it did not in form deprive the Church of the land. Recognizing that ownership by a small payment only, 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 become so and to assume an obligation of service with a mounted force when called upon.5 This expedient seems to have solved the problem. It gave rise to the numerous precariae verbo regis, of the Church records, and to the condemnation 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, were not intended or perceived at the time. It brought together the two sides of feudalism, vassalage and benefice, as they were now commonly called, and from this age their union into what is really a single institution was rapid;6 it emphasized military service as an essential obligation of the vassal; and it spread the vassal relation between individual proprietors and the sovereign widely over the state.

In the period that followed, 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 in a position 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. As in the last days of the Roman empire the poor landowner had found his only refuge from the exactions of the government in the protection of the senator, who could in some way obtain exemptions, so the poor Frank could escape the ruinous demands 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 with vigour 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, but he was not more successful than the Roman government had been in a like attempt. Finally the king found himself 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 solved the difficulty of military service apparently, but with decisive consequences. It 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, possibly developed directly from them, 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 exercise any public function there. The duties which the count should perform passed to the proprietor, who now represented the government 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 capacity 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 transformation into a private possession was assisted by the growth of the immunity was the judicial. This process had probably already begun in a small way in the growth of institutions which belong to the economic side of feudalism, the organization of agriculture on the great estates. Even in Roman days the proprietor had exercised a jurisdiction over the disputes of his unfree tenants. Whether this could by its own growth have been extended over his free tenants and carried so far as to absorb a local court, like that of the hundred, into private possession, is not certain. It seems probable that it could. But in any case, the immunity easily carried the development of private jurisdiction through these stages. The lord’s court 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, found success in the effort for independence which even Charlemagne had scarcely overcome. He was able to throw off responsibility to any central authority, and 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 administrative 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, for within the bounds of the county there had often formed private feudal possessions too powerful to be forced into dependence upon the count, sometimes the vice-comes had followed the count’s example, and often, on the other hand, the count had attached to his county like private possessions of his own lying outside its boundaries. In time the private lord, who had never been an officer of the state, assumed the old administrative titles and called himself count or viscount, and perhaps with some sort of right, for his position in his territories, through the development of the immunity, did not differ from that now held by the man who had been originally a count.

In these two ways then the feudal system was formed, and took possession of the state territorially, and of its functions in government. Its earliest stage of growth was that of the private possession only. Under a government too weak to preserve order, the great landowner formed his estate into a little territory which could defend itself. His smaller neighbours who needed protection came to him for it. He forced them to become his dependants in return under a great variety of forms, but especially developing thereby the precarium land tenure and the patrocinium 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, and in addition he had enjoyed considerable advantages of his own. 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. In ignorance of their danger, and later in despair of getting public services adequately performed in any other way, the kings first adopted for themselves 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 considered at an end. When the government of the state had entered into feudalism, and the king was as much senior as king; when the vassal relationship was recognized as a proper and legal foundation 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 system may be called full grown. Not that the age of growth was really over. Feudal history was always a becoming, always a gradual passing from one stage to another, so long as feudalism continued to form the main organization of society. But we may say that the formative age was over when these features of the system had combined to be its characteristic marks. What follows is rather a perfection of details in the direction of logical completeness. To assign any specific date to the end of this formative age is of course impossible, but meaning by the end what has just been stated, we shall not be far wrong if we place it somewhere near the beginning of the 10th century.

Before we leave the history of feudal origins another word is necessary. We have traced a definite line of descent for feudal institutions from Roman days through the Merovingian and Carolingian ages to the 10th century. That line of descent can be made out with convincing clearness and with no particular difficulty from epoch to epoch, from the precarium and the patrocinium, through the benefice and commendation, to the fief and vassalage. But the definiteness of this line should not cause us to overlook the fact that there was during these centuries much confusion of custom and practice. All round and about this line of descent there was a crowd of varying forms branching off more or less widely from the main stem, different kinds of commendation, different forms of precarium, some of which varied greatly from that through which the fief descends, and some of which survived in much the old character and under the old name for a long time after later feudalism was definitely established.7 The variety and seeming confusion which reign in feudal society, under uniform controlling principles, rule also in the ages of beginning. It is easy to lose one’s bearings by over-emphasizing the importance of variation and exception. It is indeed true that what was the exception, the temporary offshoot, might have become the main line. It would then have produced a system which would have been feudal, in the wide sense of the term, but it would have been marked by different characteristics, it would have operated in a somewhat different way. The crowd of varying forms should not prevent us from seeing that we can trace through their confusion the line along which the characteristic traits and institutions of European feudalism, as it actually was, were growing constantly more distinct.8 That is the line of the origin of the feudal system. (See also France: Law and Institutions.)

The growth which we have traced took place within the Frankish empire. When we turn to Anglo-Saxon England we find a different situation and a different result. There precarium and patrocinium were lacking. Certain Results in England. forms of personal commendation did develop, certain forms of dependent land tenure came into use. These do not show, however, the characteristic marks of the actual line of feudal descent. They belong rather in the varying forms around that line. 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 meaning in which we speak of the feudalism of Japan, or of Central Africa, not in the sense of 12th-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 varying 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. It is better to say that European feudalism is not to be found in England before the Conquest, not even in its beginnings. If these had really been in existence it would require no argument to show the fact. 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 described in the original accounts, legally interpreted, and the feudal conception of the vassal’s military service, there is a great gulf.

In turning from the origin of feudalism to a description of the completed system one is inevitably reminded of the words with which de Quincey opens the second part of his essay on style. He says: “It is a natural resource that The completed system. whatsoever we find it difficult to investigate as a result, we endeavour to follow as a growth. Failing analytically to probe its nature, historically we seek relief to our perplexities by tracing its origin.... Thus for instance when any feudal institution (be it Gothic, Norman, or Anglo-Saxon) eludes our deciphering faculty from the imperfect records of its use and operation, then we endeavour conjecturally to amend our knowledge by watching the circumstances in which that institution arose.” The temptation to use the larger part of any space allotted to the history of feudalism for a discussion 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 system” for convenience sake, but with a degree of impropriety if it conveys the meaning “systematic.” Feudalism in its most flourishing age was anything but systematic. It was confusion roughly organized. Great diversity prevailed everywhere, and we should not be surprised to find some different fact or custom in every lordship. Anglo-Norman feudalism attained a logical completeness and a uniformity of practice which, in the feudal age proper, can hardly be found elsewhere through so large a territory; but in Anglo-Norman feudalism the exception holds perhaps as large a place as the regular, and the uniformity itself was due to the most serious of exceptions from the feudal point of view—centralization under a powerful monarchy.

But too great emphasis upon variation conveys also a wrong impression. Underlying all the apparent confusion of fact and practice were certain fundamental principles and relationships, which were alike everywhere, and which really gave shape to everything that was feudal, no matter what its form might be. The chief of these are the following: the relation of vassal and lord; the principle that every holder of land is a tenant 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 lowest; and the principle of contract between lord and tenant, as determining all rights, controlling their modification, and forming the foundation of all law. There was actually in fact and practice a larger uniformity than this short list implies, because these principles tended to express themselves in similar forms, and because historical derivation from a common source in Frankish feudalism tended to preserve some degree of uniformity in the more important usages.

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 feudalism, the obligations assumed by the two parties were, as a rule, not specified in exact terms. They were determined by local custom. What they were, however, was as well known, as capable of proof, and as adequate a check on innovation by either party, as if committed to writing. In many points of detail the vassal’s services differed widely in different parts of the feudal world. We may say, however, that 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, &c. The specific services are capable of more definite statement, and they usually received exact definition in custom and sometimes in written documents. The most characteristic of these was the military service, which included appearance in the field on summons with a certain force, often armed in a specified way, and remaining a specified length of time. It often included 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 helping 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 judgments. The duty of giving the lord advice was often demanded and 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 also the financial duties of the vassal, though these were not regarded by the feudal law as of the nature of the tenure, i.e. failure to pay them did not lead to confiscation, but they were collected by suit and distraint like any debt. They did not have their origin in economic considerations, but 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. There was great variety regarding the occasion and amount of these payments, and in some parts of the feudal world they did not exist at all. The most lucrative of the lord’s rights were wardship and marriage, but the feudal theory of these also was non-economic. The fief fell into the hands of the lord, and he enjoyed its revenues during the minority of the heir, because the minor could not perform the duties by which it was held. The heiress must marry as the lord wished, because he had a right to know that the holder of the fief could meet the obligations resting upon it. Both wardship and marriage were, however, valuable rights which the lord could exercise himself or sell to others. These were by no means the only rights and duties which could be described as existing in feudalism, but they are the most characteristic, and on them, or some of them, as a foundation, the whole structure of feudal obligation was built, however detailed.

Ideally regarded, feudalism covered Europe with a network of these fiefs, rising in graded ranks one above the other from the smallest, the knight’s fee, at the bottom, to the king at the top, who was the supreme landowner, 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 of rank, titles or size. 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 case of the count of Champagne, one of the peers of France, is a famous example. His great territory was held only in small part of the king of France. He held a portion of a foreign sovereign, the emperor, and other portions of the duke of Burgundy, of two archbishops, of four bishops, and of the abbot of St Denis. Frequently did great lay lords, as in this case, hold lands by feudal tenure of ecclesiastics.

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 because they were members of the body politic, and were performed as duties owed to the community for its defence and sustenance, no longer existed. New forms of organization had arisen in which indeed these conceptions had not entirely disappeared, but in which the vast majority of cases a wholly different idea of the ground of service and obligation prevailed. Superficially, for example, the feudal court differed but little from its Teutonic predecessor. It was still an assembly court. Its procedure was almost the same as the earlier. It often included the same classes of men. Saxon Witenagemot and Norman Curia regis seem very much alike. But the members of the feudal court met, not to fulfil a duty owed to the community, but a private obligation which they had assumed in return for the fiefs they held, and in the history of institutions it is differences of this sort which are the determining principles. 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 make clear to one’s mind 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. Something 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 undifferentiated. 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, in so far as there was any in the feudal period, and as council, and it exercised 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 at different dates 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. It can readily be seen that 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. When conditions so changed that government could free itself from its dependence on the baron, 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. Feudalism had performed a great service, during an age of disintegration, by maintaining a general framework of government, while allowing the locality to protect and care for itself. When the function of protection and local supervision could be resumed by the general government the feudal age ended. In nearly all the states of Europe this end was reached during, or by the close of, the 13th century.

At the moment, however, when feudalism was disappearing as the organization of society, it gave rise to results which in a sense continued it into after ages and even to our own day. One of these results was the system of law which it created. Decline and survivals. As feudalism passed from its age of supremacy into its age of 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 the 13th century, and especially the second half of it. The codes in their turn tended still further to harden these usages into fixed forms, and we may date from the end of the 13th century an age of feudal law regulating especially the holding and transfer of land, and much more uniform 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. In this later pseudo-feudalism, however, the political had given way to the economic, and customs which had once had no economic significance came to have that only.

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 nobilities and the feudal baronage proper. It is only in certain backward parts of Europe that the terms feudal and baronage in any technical sense can be used of the nobility of the 15th century.

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