From Public to Private Power: Europe in the Feudal Age

Legal History, Rey Juan Carlos University, Madrid, Spain


  • Si aliquis ex fidelibus nostris, post obitum nostrum () seculo renuntiare voluerit et filium vel totem propinquum habuerit, qui rei publicae prodesse valeat, suos honores () ei valeat placitare. Et si in alode suo quiete vivere voluerit, nullus ei aliquod impedimentum facere praesumat, neque aliud aliquid ab eo requiratur, nisi solummodo ut ad patriae defensionem pergat.1

  • If one of our faithful, after our death, wishes to renounce the world for his love of God, leaving a son or a close relative able to serve the Republic [the State], let him be allowed to transmit his estate to whomever he designates. And if he wishes to live placidly on his estate, let no one dare hinder him, and let him not be asked for anything, except to defend his country.—Charles the Bald. Capitulary of Quierzy (877)

7.1 The Origins of Feudalism

One of the reasons why the Germanic kings wielded less power than the Roman emperors was because the old hierarchical relationship which singled out the emperor as the representative of public authority was replaced, in the case of the Germanic kingdoms, by a series of interpersonal, private accords between the king and his most important subjects: the heads of clans or lineages (sippe), which could challenge the crown, as royal succession was based on election rather than hereditary principle. The Germanic kings, thus, struggled to be considered superiors in the way the Roman emperor had been because they had to grapple with the nobles of their kingdoms, to whom they often entrusted territorial government. This important transformation led to a specific form of social organization that historians have called feudalism,2 which, from the perspective of constitutional history, Strayer (2005, 63) has described as a type of government in which political power was considered to be a private prerogative and asset wielded by a whole series of local lords.

7.1.1 The Administrative Shortcomings of the Carolingian Monarchy

If the Germanic kingdoms’ existence was precarious, this was in large part because of the disappearance of the Romans’ notion of law and public affairs, arising from the fact that the Germanic kings lacked an administrative apparatus of the type afforded by the extensive imperial bureaucracy of the Dominate. As Ganshof (1996, 3) points out, in the Frankish kingdom, the state was largely unable to maintain the peace or secure the safety of its inhabitants because its structure was too primitive, and the officials in its service too few in number and too unreliable for them to successfully carry out basic government functions. Free men who felt insecure, turned to powerful neighbors (magnates), who provided them with protection in exchange for some form of service (domestic, economic, military, or all three) through the legal instrument of commendation (commendatio). The person commending himself was termed a “vassal” (vassus).

The concept of res publica existing in the ancient Roman Empire was supplanted in the Germanic kingdoms by a patrimonial conception of royalty. There was, consequently, no official distinction between public and private revenue, which meant that there was no public treasury (the ancient Roman fiscus), and the costs of the kingdom’s government and administration were covered by the sovereign’s private wealth. As Germanic kings did not receive regular taxes, they were forced to depend on the spoils of war3 and, above all, what their lands produced, with the quality of their administration varying widely (James 1991, 182–191).

Although the royal descendants of Charles Martel initially held an abundance of lands, which were better managed than during Merovingian times, the distances involved and the difficulty of transport made it impossible to establish a centralized system of government and administration. Charlemagne, thus, created the position of the missi dominici, royal representatives he charged with the task of monitoring the conduct of local authorities (Barbero 2004, 162–166). This oversight mechanism, however, was inadequate because the missi could not be everywhere at all times.4 Thus, the Frankish kings came up with a way to control those who ruled areas far from the court while ensuring their loyalty: vassaldom.

7.1.2 Vassaldom: A Formula for Permanent Control over Local Authorities

The vassal relationship was one freely entered into between a lord (dominus, senior), generally rich and powerful, and a vassal (vassus, homo), usually a free man of humbler means. The contractual relationship was established for life, and bound the parties to respect a set of mutual rights and obligations. The lord was obliged to maintain and protect his vassal, while the latter pledged to serve his lord, particularly by providing him with military defense. The vassal could be maintained by directly providing him with housing, clothing, food, and a share of the spoils, when relevant. However, it became increasingly frequent for vassals to be indirectly maintained as their lords ceded lands to them for the duration of their relationship.5

In a society in which agriculture was the prevailing economic activity and the most essential form of wealth, it became expedient to bestow on vassals sufficient land to assure their proper maintenance. If land could not be given in full ownership (proprietas), its use was more frequently granted for long periods of “tenement”. Via this practice, which the Frankish kings borrowed from the Late Roman Empire, tenants acquired what in Roman Law was considered a right over a thing belonging to another: ius in re aliena (Ganshof 1996, 9). During the Carolingian period, land transferred in this way was called beneficium,6 though it would ultimately be known as feudum 7—a term whose historical significance will be obvious to the reader.

Lacking officials to assure sound administration throughout their kingdoms, the Frankish kings devised the practice of ceding to their most eminent subjects, the nobles, the usufruct of lands held by the crown in exchange for their commitment to govern and administrate them on the king’s behalf and provide the monarchs with military assistance when summoned to do so (Barbero 2004, 259–260).8 Their geographical isolation led to most of these nobles ultimately enjoying considerable autonomy, which spurred the kings to require the lords to which they ceded lands to take strictly personal pledges of loyalty and allegiance.9

7.1.3 The Limits of the Feudal Relationship: Its Lifelong Character

This system of securing men-at-arms by entrusting them with the maintenance of royal lands while granting them the wealth generated by their yields, was widely employed by the Carolingian kings, and to good effect, as in this way they were able to fund the creation of the era’s most powerful armies.10 This practice allowed Charles Martel to defeat the Muslims at Poitiers in 732, and his son Pepin the Short, to intervene in Italy 20 years later on behalf of the papacy, thereby ensuring his legitimate occupation of the French throne thanks to the Church’s support.

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

7.1.4 The Consuetudinary and Judicial Regulation of Vassal Relations

As the notion of public power had dissolved, the feudal system was not initially set down in laws, for the king lacked the authority and political power to establish legal precepts. Crowned by bishops, Christian monarchs were primarily considered “righteous kings” (roi justicier), whose main mission was to defend the immemorial order created by God—an order at the time defined by tradition and custom. Vassal relationships were part of this ancient order, and this is why time-honored practices defined the legal features of feudal pacts, through the verdicts of feudal courts ruling on conflicts arising between lords and vassals (Ganshof 1996, 158–159). Kings generally, did not enjoy a preeminent position in these tribunals which, as a result of the contractual nature of feudal pacts, were composed of the most important feudal lords, who considered themselves on a level with the king (Cour des pairs). In some cases, their judicial decisions were eventually recorded and collected to serve as an example and precedent in the event of future conflicts, leading to the appearance of texts making up “feudal law”.11

7.2 The Consolidation of the Feudal System: The Era of “Classic Feudalism”

7.2.1 The Degradation of the System: From Lifelong to Hereditary Benefits

The fact that the feudal pact was for life, but was not passed down, rendered it intrinsically precarious. Troubled by this, the great vassals sought by every means at their disposal to pressure the king to make fiefdoms hereditary.

A first step was taken in the year 877 when Charles the Bald, at Quierzy-sur-Oise, granted his subjects, via capitulary 12 (a law divided into chapters), the privilege of passing their prerogatives down to their heirs in the event that they perished on a military campaign which the king had organized (Dutton 2009, 501–502). This case was an isolated one, but it reflected a trend which would eventually be institutionalized through the force of custom as the Carolingian Empire entered into decline in the late ninth century.13 The shift to this process of consolidation, however, was far from smooth.

This is what Taylor (2005, 129) calls mutation féodale: a transformation of the public power and social order resulting from the alteration of the vassal’s former position in proprietary lordships. The establishment of familial succession in place of royal appointment led to the appearance of autonomous counts who began to consider their fiefdoms fully alienable, which were partitioned among multiple heirs across successive generations. The consequence was the proliferation of castles.14

The principle, however, did not take root immediately. In fact, two centuries after the promulgations of the capitulary at Quierzy, the hereditary nature of vassals’ prerogatives was still a source of conflict between lords and vassals in Norman England. It was not until the twelfth century that the hereditary principle was firmly established, at which point the bone of contention became the amounts of relief taxes which inheriting vassals were obliged to pay their lords.15 The obsession with preserving these rights within the family was so great that even women came to be allowed to inherit and transmit them in the absence of male heirs.

7.2.2 The Transformation of the Feudal Relationship

When vassals’ privileges became hereditary, the original feudalism which had originated during the Carolingian period was transformed, altering both the customs governing the relationships between lord and vassal and the legal nature of the latter’s entitlements. Thus, where Carolingian feudal vassaldom was predominantly a personal tie, the prerogatives it entailed later became the essence the feudal relationship, in what Marc Bloch has called the “second feudal age” (Bloch 2004, 69). Whereas before land was an incidental effect of becoming a vassal, under classic feudalism one became a vassal precisely and expressly to obtain the fiefdoms and privileges which vassaldom promised. This is why in the twelfth century, as Bisson (2009, 40) indicates, there was an explosive proliferation of castles, knights, and princes and bishops.

The consequence was that, in response to competition and economic pressure, aristocratic families preferred a vertical, dynastic structure of succession, seeking to restore the indivisibility of lordship and embrace a new custom of primogeniture. The result was the appearance during the twelfth century, of dynasties indentified with regional power bases and led by a single head, generally a male (Taylor 2005, 130).

7.2.3 The Accumulation of Fiefdoms

As land ownership came to take precedence over the personal bond in feudal relationships, a struggle began to acquire the greatest possible number of new fiefdoms. In this way, those who were vassals to various kings, earls and archbishops managed to accumulate an abundance of fiefdoms.16 This land grab led some kings not to hesitate to actually become vassals of their vassals to secure certain fiefdoms, such as strategically-located castles. It goes without saying that when one had sworn loyalty to a number of different lords, a conflict could arise if any number of the latter went to war. A remedy was sought for this situation through the establishment of privileged or preferential vassal ties known as liege homage (Bloch 2004, 215).

In the end, the development of the feudal bond resulted in the formation of a particular legal regime applied to feudal lands, whose vassal occupants maintained certain well-established duties (essentially military and judicial) to their lords who, as they owned these lands outright, were beholden to no one.

7.2.4 From Public to Private Rule: The “Feudal Revolution”

From the point of view of the history of the Western polity, feudalism is a period in which a coherent, centralized public power disappeared, replaced by a vast network of private relationships. This process was accelerated by the diffusion of governmental powers resulting from the Merovingian and Carolingian kings’ granting of “immunities” to their vassals, a privilege that released them from the authority of royal officials and their orders concerning taxation and jurisdiction (Robinson 2000, 31–32).

As Reynolds (1996, 20) specifies, what made vassalage so relevant was that at the time when it arose there was simply no idea of impersonal, public obligation; the Germanic tribes did not harbor the Roman notion of res publica, and the Merovingian kings perceived and administrated their kingdoms as their own private property.

Strayer (1971, 14) has indicated, that during the feudal era, interests and loyalties were primarily local, limited to the family, the neighborhood and the county. Royal officials tended to become leaders of autonomous local communities rather than agents of central authority. By the tenth century, they were practically independent, but their own authority, in turn, was being eroded by viscounts, castellans, and other leaders of smaller communities. Kings and princes were powerless to maintain control over castles they had built themselves, so they handed them over as fiefs to their vassals, at times even to prevent the raising of new fortresses, which became administrative capitals for surrounding districts and the centers of a whole network of facilities.17 Soon lords found themselves being defied by their own castellans, who tended to become themselves the heads of their own dynasties. As counties became hereditary and were partitioned the counts’ rights as legitimate heirs of the Frankish officials disintegrated, with the upshot that the idea of public office gave way to new conceptions and realities of power informed by feudal concepts (Bloch 2005, 124).

As Ganshof (1996, 60) points out, the feudal bond became a check on the disintegration of the state through a process that has been called the “Feudal Revolution”, conventional shorthand for the disappearance of any center capable of controlling localities, and the ascendancy of small-scale forms of organization (Reuter 2010, 72). According to Bisson (1994, 18), this altered the nature and social role of violence, as it was no longer monopolized by a strong authority in the interest of maintaining public order, yielding newer “private” forms of violence, practiced by the masters of castles and those beholden to them. Lordship became predatory, militant, aggressive and unconstructive.

A near-permanent state of war was aggravated by the absence of political and social order. Orders issued in capitals were ineffectual, no longer enforceable in lands lying far from them. The lack of effective authority meant that merchants and traders were perpetually vulnerable to assault and robbery when transporting their goods. Thus, long-distance commerce was frustrated, and the economy regressed towards a model defined by local production and self-sufficiency. Finally, civilization collapsed “in the sense that the pursuit of inessentials did not enhance life but threatened survival” (Robinson 2000, 27).

The only significant and effective resistance to this state of anarchy and violence was put up by the Church which, as heir to the Roman imperial ideal, endeavored to counteract the disintegration of authority and to restore the notion of power exercised in the common interest.

7.3 The Church as a Bulwark Against the Disintegration of Public Power

The consolidation of the hereditary character of vassals’ prerogatives, dealt a harsh blow to kings and their power, and to social stability, as it generated an almost continuous state of war between subjects, who jockeyed to increase their wealth and power through the acquisition of fiefdoms by force of arms. When the kings were unable to restore order, the Church stood as the only institution seeking to rectify this feudal anarchy, sustaining some ideas inherited from Roman public law (Reynolds 1996, 20).

7.3.1 The Defense of Royal Authority

In the first place, the bishops did their best to maintain the kings’ supremacy over the feudal lords, at least in terms of formal recognition. Thus, in France, for example, the Church refused to consecrate or crown the great lords. According to the accord reached with Pepin the Short in 752, only kings were to be anointed by the Church.18 In this regard, it is important to mention that another important contribution made by Pope Gregory I, was his interpretation of royal unction, included in the Old Testament, which he viewed as a Divine sanctioning of the king’s legitimacy. By virtue of unction, Gregory believed that the king held, thus, a ministerial office, and was called upon to serve in accord with his “divine inheritance”. His interpretation includes many elements of successive conceptions of kingship, based on what Ullmann (2010, 71) calls the “rebirth of the ruler”. In the Iberian Peninsula, meanwhile, to shore up their power, the kings relied upon papal authorization, as was clearly the case in Aragón and Portugal.19

The favoring of royal authority was also evident in the privilege the popes assigned the kings of France, who were permitted to create abbeys wherever they wished—even in territories belonging to feudal lords. These abbeys fell under royal patronage, thereby bolstering the kings’ preeminence.

Given these conditions, it is not surprising that the kings’ chief advisers belonged to the clergy.

7.3.2 The Armed Church

With the purpose of restoring order and eradicating the state of permanent warfare, bishops and even parish priests, did not hesitate to organize armed forces (episcopal and parochial militias), to fight the feudal lords.20 The image of the warrior bishop is a quintessential icon of the medieval era (Reuter 1992, 79).21 The emergence of military orders, made up of monk soldiers, was to be an important stabilizing factor, following the example of the Order of the Temple (The Knights Templar), founded to protect the pilgrims traveling to the Holy Land. This example would be of particular importance in Reconquest-era Spain where, after invasion by the Almoravids and Almohads, there appeared different orders (Santiago, Calatrava) which played an essential role in driving the Moors from the south of the Peninsula between the eleventh and thirteenth centuries.22

Similarly, the Crusades were another of the Church’s contributions which had the effect of quelling the state of constant war in Europe, and restoring order to feudal societies by channeling the lords’ aggression and warmongering towards the conquest of Jerusalem and other holy sites.

7.3.3 Moral vs. Political Commitment

The area in which the Church had the greatest influence on reducing feudal anarchy would come in the spiritual realm. Thus, for example, the practice of oath-taking upon the Holy Scriptures was fomented by the Church, compensating for the waning of state authority by establishing believers’ personal, formal and overt commitment to God. This commitment, in addition, was legally binding in so far as the Church was authorized to try cases of perjury—not to mention that in some cases, the testimony of several people claiming the accused’s innocence in a solemn oath taken upon the Scriptures, known as an act of compurgation, or wager law, was legally admitted and served to exonerate him.23

The Church employed its spiritual authority to impose Christian obligations upon the feudal lords, through the creation of a specific ceremony to declare them knights, including a retreat of 48 h during which they were to fast and pray before receiving the Church’s backing. Knights were obligated, moreover, to pledge to defend widows and orphans, and assume the moral commitment which their status entailed. Thanks to this, as Stephenson (2007

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