"Law, Feudal," Dictionary of the Middle Ages: Supplement 1 (New York: Charles Scribner’s Sons-Thompson-Gale, 2004: 320-323

The Development of Feudal Law in the Ius commune

Ken Pennington

The law regulating the relationships of lords and vassals in the period before ca. 1000 A.D. was primarily based upon unwritten customary usages. The sources from the period 800 to 1000 contain terms like lord (dominus), vassal (vassalus), fief (beneficium or feudum) that later jurists would carefully analyze and define. Historians have learned that when they find these words in early medieval sources, they cannot simply assume that these words describe the same lord and vassal relationship that historians of the mid-twentieth century often used to describe the feudal relationship in later law: a lord bestowed a fief upon a vassal in return for military service. The vassal swore homage and fealty to the lord.

            In the period from 800 to 1150, the word that described a fief (sometimes, but not always, a piece of land) a was generally beneficium. Although the word, “feudum,” from which the English word feudal is derived, is found in early sources, it replaces beneficium as the standard word to describe a fief only during the twelfth and thirteenth centuries. At the same time the law governing the bestowal of fiefs, the rights of lords and vassals, and the complicated property rights of fiefs emerge from unwritten, ill-defined, customary chaos in which rules and principles were fluid. For political relationships the feudal contract had several advantages over a contract in Roman law. The feudal contract could be inherited and broken for political reasons. When a feudal contract passed from one generation to another, the bonds that the contract cemented were renewed in public ceremonies that reminded each party of its obligations and duties.

            Law can exist without jurisprudence, but law without jurisprudence is uncertain. Unless there are jurists to interpret the law, the rights of persons cannot be secure. Before ca. 1100 Europe was a land without jurists and without jurisprudence. In the first half of the twelfth century the study of law in schools began in North central Italy, especially in the city of Bologna. A professional class of jurists began to teach, practice, and participate exercise of power in the courts of the nobility and the governmental institutions of the Italian towns. They used Justinian’s great codification of the sixth century Corpus iuris civilis as the text upon which they commented and with which they taught. A man named Gratian produced a book of canon law upon which the jurists based the study of ecclesiastical (canon) law. These books became the standard Libri legales (law books) for the study of law, the Ius commune, in the schools and for the practice of law in the courts.

            There were no books for feudal law. Because secular and ecclesiastical institutions were involved in legal relationships that were feudal, there was a need for written law and a jurisprudence that would provide an interpretive tool to understand it. Monasteries had feudal ties with persons and institutions. Bishops had feudal relationships with men and towns. Towns had feudal contracts with other towns and persons. The nobility had traditional feudal contracts with vassals but also with towns. Feudalism had become much more than contract that regulated and defined a relationship between a lord and a vassal. Lawyers who studied the new Ius commune at Bologna and other schools quickly realized that texts were needed. Mid-twelfth century jurists began to organize the study of feudal law around a diverse set of texts. The most unusual was the central role that a letter of Fulbert, bishop of Chartres (1006-1028) played in the development of feudal law.

            William V, count of Poitou and duke of Aquitaine had asked Fulbert for advice about the obligations and duties that a vassal owed to a lord. William had troubled relationships with his vassals. In his reply (ca. 1020) Fulbert wrote a short treatise on feudal relationships that circulated fairly widely. Its future as a fundamental legal text was assured when Bishop Ivo of Chartres (1091-1116) placed it in his canonical collections. Gratian placed it in his Decretum (C.22 q.5 c.18) ca. 1120 where it became a locus classicus for canonistic discussions of the feudal contract and the relationship of the lord and vassal. Fulbert told William that when a vassal took an oath to his lord that six things were understood to be contained in it whether explicitly expressed or not: to keep his lord safe, to protect him from harm, to preserve the lord’s justice, to prevent damage to his possessions, and not to prevent the lord from carrying out his duties. Fulbert alleged that he got this list from written authorities, but his exact source, if there was one, has never been discovered. For the next four centuries jurists cited Fulbert’s list of obligations and duties as being central to the feudal oath of fealty.

            The canonists discussion of this text illustrates why feudal law became so important in the later Middle Ages. They applied the Fulbert’s principles to the relationship between popes and bishops, between the emperor and the pope, and between bishops and the clerics under them. The greatest canonist of the twelfth century, Huguccio of Pisa (ca. 1190), noted that these principles applied to the oath that the emperor and bishops made to the pope and that clerics sometimes made to their bishops. Huguccio and later canonists concluded that if a cleric gave legal assistance to litigants in a law case against his own church or his bishop to whom he had sworn an oath, he could be deprived of his benefice just as a vassal could be deprived of his fief for the same offense. Principles of feudal law were extended into relationships that had little to do with the traditional bond between a lord and vassal. Canonistic commentaries also seem to have shaped the ethical and moral standards that vassal had to maintain. Although they certainly drew upon unwritten customary practices, the canonists laid down the rules in their commentaries on Fulbert’s letter that forbade vassals from violating the sanctity of their lords’ women (wives, daughters, and other members of the household) and from injuring their lords’ interests in court by testifying against them.

            The basic books of feudal law were formed in the second half of the twelfth century. Obertus de Orto, a judge in Milan, sent his son Anselm to study law in Bologna ca. 1154 and 1158. Anselm reported to his father that no one in Bologna was teaching feudal law. Obertus wrote two letters to his son (that may be rhetorical conceits) in which he described the law of fiefs in the courts of Milan. It may be that the primary reason why Obertus wrote these two letters were the compilation of customary law that was being undertaken by the commune of Milan. Whatever the case may have been, Obertus’ two letters became the core of a set of texts for the study of feudal law. Obertus put his letters together with other writings on feudal law, especially from Lombard law, to create the first of three “recensions” of the Liber feudorum (in the manuscripts the book was named Libri feudorum, Liber usus feudorum, Consuetudines feudorum, and Constitutiones feudorum). The manuscripts of the first two recensions reveal that there was no standard text. Some of them included eleventh and twelfth-century imperial statutes of the emperor’s Conrad II, Lothair II, and Frederick I. The second recension often contained the letter of Fulbert of Chartres and additional imperial statutes. Typical of legal works in the second half of the twelfth century the jurists and scribes added texts of various types(extravagantes) to this recension. There are almost no two manuscripts that contain exactly the same text. The jurists did not comment on the Liber feudorum of Obertus. The text’s entry into the schools must have been slow. The first jurist to write a commentary on the Liber was Pilius. He wrote a commentary on the second recension ca. 1192-1200, probably while he was a judge in Modena. He did not comment on all parts of the Liber. Although the letter of Fulbert of Chartres circulated in many manuscripts he did not gloss it. This illustrates an important point about feudal law in the twelfth century: its jurisprudence was not created by one corner of the world of law.

            The final or vulgate recension of the Liber feudorum added constitutions of the Emperor Frederick II, the letter of Fulbert, and other texts that had circulated in the twelfth-century manuscripts. Accursius, the most important jurist of Roman law in the thirteenth century, wrote a commentary based on Pilius’ in the 1220's. It may have gone through several recensions, not all by Accursius. Accursius also wrote the Ordinary Gloss on the rest of Roman law at about the same time. His authority and the importance of feudal law combined to give Liber feudorum with Accursius’ Ordinary Gloss a permanent place in the Ius commune. From the 1230's on the Liber was included in the standard manuscripts of Roman law immediately after the Authenticae that the stationers at the law schools produced for jurists, students, and practitioners. In the fourteenth century Johannes Andreae († 1348) questioned whether the Liber feudorum had been legitimately included in the Libri legales since there was no public official who mandated its inclusion in the body of law. Johannes presented both sides of the question, but most jurists decided that it was a legitimate text because it had been accepted by custom and the schools.

            Canon law continued to contribute to the jurisprudence of feudal law after the twelfth century but did not produce any legislation as central as Fulbert’s letter. Pope Innocent III (1198-1216) touched upon feudal matters in many of his letters. Two of them entered the official collections of canon law under the title De feudis. One of these letters shaped feudal law in an important area: the right of a lord to bestow a fief when he had taken an oath not to bestow a fief on someone else. Feudal law in the later Middle Ages found its jurisprudential roots in Roman law, canon law and in secular legal systems. This cross-fertilization accounts for the vigor of feudal law until the end of the sixteenth century.

            The first penetration of feudal law into secular can be found at the beginning of the thirteenth century. When the commune of Milan published its statutes in 1216 the titles that dealt with feudal law were taken primarily from the Liber feudorum. The statutes contain an oath that a vassal took to his lord: “I swear that I will be henceforward a faithful man and vassal to my lord. I will not lay open to another to <my lord’s> injury what he has entrusted to me in the name of fealty..” In a reference to the canonistic commentary on the letter of Fulbert and the presumptions of ethical and moral rules that governed the feudal oath, the statutes added: “There are many things contained in these words which are difficult to insert here.” When the Emperor Frederick II promulgated a law code for the Kingdom of Sicily in 1232, the Constitutiones of Melfi, he carefully regulated the succession of fiefs and the rules governing the nobility in bestowing fiefs. The jurists commented on Frederick’s Constitutions and incorporated it into the jurisprudence of the Ius commune. After the early thirteenth century many secular legal codes dealt with feudal customs in their jurisdictions. They acknowledge a wide range of different practices. In Spain the Siete Partidas and in France the Etablissements de Saint Louis dealt extensively with the customary law of lords and vassals.

            Feudal relationships generated legal problems and court cases in the later Middle Ages. The earliest reports of court cases involving feudal disputes and using feudal law date to the late twelfth century, and their numbers proliferate during the thirteenth and fourteenth centuries. As the number of these cases increased, jurists were called upon to write consilia (legal briefs) to solve them. The jurist who best illustrates this development is Baldus de Ubaldis. He had taught for many years in the republican city of Perugia when, in 1390, Giangaleazzo Visconti called him to the University of Pavia. Baldus became Giangaleazzo’s court lawyer and devoted much of his time struggling with Visconti’s legal problems and those of his vassals. Giangaleazzo was attempting to assert feudal rights over his vassals, and to support his lord, Baldus became enmeshed in the intricacies of feudal law. He finished a commentary on the Liber feudorum in 1393. It became the most important exposition of feudal law in the late Middle Ages. Baldus also wrote a number of long consilia in which he tried to give legal justification to the state based on feudal privileges, rights, and obligations that Giangaleazzo wanted to create. Baldus found it difficult to justify Giangaleazzo’s claims when they violated deeply embedded norms of feudal law and the Ius commune. The result was a series of torturous and convoluted consilia whose composition betray Baldus’ ambivalence about his task.

            Feudal law remained an important part of European jurisprudence until the seventeenth century. Jurists regularly treated feudal problems in their consilia. They also continued to write commentaries on the Liber feudorum. The last two great commentators on feudal law were Johannes Antonius de Sancto Georgio (†1509) and Mattheus de Afflictis († 1529) who wrote extensive and widely circulated commentaries on the Liber.

Bibliography

Sources: Ernst Adolph Theodor Laspeyres, Ueber die Entstehung und älteste Bearbeitung der Libri feudorum (1830). Consuetudines feudorum, ed. Karl Lehmann, revised by Karl August Eckhardt (1892-1896, reprinted 1971). The text of the Liber feudorum with the Ordinary Gloss of Accursius was printed in many editions as part of Justinian’s Corpus iuris civilis in the 15th-17th centuries. The Liber and the Ordinary Gloss has been reprinted with a commentary by Mario Montorzi, Diritto feudale nel Basso medioevo: Materiali di lavoro e strumenti critici per l'esegesi della glossa ordinaria ai Libri feudorum: Con la ristampa anastatica dei Libri feudorum e della loro glossa ordinaria (1991). Baldus de Ubaldis’ commentary on the Liber feudorum was printed 23 times in the 15^th and 16^th centuries under the title Super feudis or In vsus feudorum commentaria beginning with the Editio princeps of Rome 1474 and ending with Lyon 1585.

Literature: “Feudalism” and feudal law have been the subject of much controversy in the recent literature. Susan Reynolds, Fiefs and Vassals: The Medieval Evidence Reinterpreted (1994) has published a broad, interpretive work whose discussion and analysis is sometimes exasperatingly unclear. This entry departs from her conclusions on a number of points. Nevertheless, her work has value because she has covered more of Europe than any other single historian and because her discussions of the literature and her bibliography are extensive. Shorter and less tendentious articles by various authors on feudal law and institutions in France, Germany, England, Kingdom of Sicily, Scandinavia, Poland and Bohemia, Hungary, Iberian peninsula, and the Latin East and institutions can be found in the Lexikon des Mittelalters 5 (1991) 1807-1825. Peter Weimar has examined the development of the Liber feudorum with admirable thoroughness in “Die Handschriften des Liber feudorum und seiner Glossen,” Rivista internazionale di diritto comune 1 (1990) 31-98 and a short summary in “Liber feudorum,” Lexikon des Mittelalters 5 (1991) 1943-1944. See also Maria Gigliola di Renzo Villata, “La formazione dei ‘Libri feudorum’,” Il feudalesimo nell’alto medioevo (Settimane di Studio del Centro Italiano di Studi sull’Alto Medioevo 47; 2000): 2.651-721. A recent unsatisfactory discussion of the canonistic jurisprudence of the feudal oath is Magnus Ryan, “The Oath of Fealty and the Lawyers,” Politisches Denken und die Wirklichkeit der Macht im Mittelalter, ed. J. Canning and O.G. Oexle (1998): 211-228. On later commentaries on the Liber feudorum see Cristina Danusso,. Ricerche sulla "Lectura feudorum" di Baldo degli Ubaldi. (Università degli Studi di Milano Pubblicazioni dell'Istituto di Storia del Diritto Italiano, 16, 1991); Danusso also discusses the later jurists’ views about the authenticity of the Liber (pp. 151-176). Ennio Cortese, Il diritto nella storia medievale, 2: Il basso medioevo (1995), especially pp. 160-167, places feudal law in thex-large r context of legal developments. Gérard Giordanengo has done the best work on French feudal law, see his “Epistula Philiberti,” Féodalités et droits savants dans le Midi médiéval (1992) and Le droit féodal dans les pays de droit écrit: L’exemple de la Provence et du Dauphiné, XIIe-début XIVe siècle (Bibliothèques des Ecoles Françaises d’Athènes et de Rome, 266 (1988). Giordanengo has also written a fine essay on feudal consilia, “Consilia feudalia,” Legal Consulting in the Civil Law Tradition, ed. Mario Ascheri, Ingrid Baumgärtner, and Julius Kirshner, Comparative Studies in Legal History (1999): 143-172, and adds a list of important feudal consilia (pp. 162-172). An example of the consilia that the jurists wrote on feudal problems of sovereignty is edited in K. Pennington, "The Authority of the Prince in a Consilium of Baldus de Ubaldis," Studia in honorem Eminentissimi Cardinalis Alfonsi M. Stickler, ed. Rosalio I. Card. Castillo Lara (Studia et Textus Historiae Iuris Canonici 7; 1992; 483-515 reprinted significant corrections in Popes, Canonists, and Texts, 1150-1550 [1993]) and “Allegationes, Solutiones, and Dubitationes: Baldus de Ubaldis' Revisions of his Consilia,” Die Kunst der Disputation: Probleme der Rechtsauslegung und Rechtsanwendung im 13. und 14. Jahrhundert, ed. Manlio Bellomo (Schriften des Historischen Kollegs, Kolloquien 38; 1997) 29-72. On feudal law in Southern Italy see Mario Caravale, La monarchia meridionale: Istituzioni e dottrina giuridica dai Normanni ai Borboni (1998) Giancarlo Vallone, Iurisdictio domini: Introduzione a Matteo d'Afflitto ed alla cultura giuridica meridionale tra Quattro e Cinquecento (1985) and Istituzioni feudali dell'Italia meridionale: Tra Medioevo ed antico regime: L'area salentina (1999). 

Kenneth Pennington

The Catholic University of America