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Feudalism was invented in the year 1037, at Milan. Nobody knew it at the time, but that's how legal systems work. People with a problem do what it takes to solve the problem, and every now and then, the solution is more fertile than anybody imagined - usually, just because the time is right.

By 'feudalism,' I mean not the feudal relations between lords and their vassals but the political system of land tenure that turned those ad hoc arrangements into the the foundation-stone of 'medieval' society. Actual lords and vassals - fair ladies and tournaments notwithstanding - appear to have interacted pretty much like mobsters, and no two deals were quite the same. 'Feudalism' is a one-size-fits-all rectification.  In 'feudalism,' the king divides up the land among his best men, all of whom swear to be true to him and to come to his aid if the kingdom is attacked by enemies. Then these dukes repeat the process, dividing up their great fiefs among their knights in exchange for similar vows. This is how the king raises an army, and this is how the peasants are protected. When the king, or a duke, or a knight dies, his land passes, along with his responsibilities, to his eldest son, who must repeat his father's oaths. Everyone is bound to commitments of this kind, but the commitments are never between equals. I hope you learned about this in school, even if it is a fantasy that legal scholars have been embroidering since 1037.

In the early European period - between Charlemagne (c. 800) and Louis VI, who came to the French throne in 1108 - kings really counted on dukes and knights to fight for them, and their arrangements were accordingly flexible. They  appear to have worked with what they took to be customs, but the customs weren't written down in any comprehensive way, and of course they differed from place to place. In emergencies, kings and lords were eager to reward fighting men who could help them, and the only resource available was land. So they gave away land. "I'll give you this property if you show up next week with a bunch of knights and help me defeat the enemy." (Here, perhaps, we have the origin of aristocratic contempt for money.)  Long after the battle had been fought and won, the knight still had that land, and maybe he wasn't so loyal. Giving away land, moreover, often mean giving away effective sovereignty, which is how 'King of France' and 'Holy Roman Emperor' came to be rather empty titles, held by men whose power didn't cover much territory.

In the late eleventh century, kings and emperors realized that they would have to reverse this trend. They didn't really want the land back; they wanted the loyalty and fighting force of their vassals. As they saw it, they faced two questions, two areas of uncertainty that hadn't been worked out or even considered when the land had been given away. First, under what circumstances could the lord rightfully confiscate, if not the land, then the right to the land (so that he might give it to someone more loyal)? Second, what were the rights of heirs - and, for that matter, who were the heirs?

Bishops and abbots had been dealing with these questions for a long time, by keeping records of their arrangements. Their records were harder than unwritten customs to argue against, and, besides, churchmen never gave their land away outright. What they had, they got by gift, and they  were not supposed to acquire more by conquest. So they stipulated the services that their knights would have to perform, such as the payment of rent in crops, and the terms of military service, and they set a term to their grants, usually of several successive lives. That way, the knight's grandson would have to come back for a renewal, which the bishop or abbot wouldn't be required to grant. Churchmen dealt with knights, by the way, because knights could defend their holdings.

So what happened in 1037? The city of Milan, whose big man was its archbishop, Aribert, was in turmoil. The magnates and lesser knights were at odds, and when the archbishop confiscated a knight's fief, a revolt broke out. The Emperor, Conrad II, came to settle the dispute, which it was in his interest to do if he wanted the Milanese to fight in his army. I can't quite figure out from the books in my library just how the Siege of Milan came out, but, in an unsuccessful attempt to make the locals happy,  Conrad issued an ordinance setting forth general answers to the two questions raised above. Fiefs could not be confiscated unless their holders had been convicted of an offense, and fiefs were to be inherited by sons, grandsons, and brothers, in that order. Because the trouble in Milan wore the aspect of the very rich fighting against the merely well-to-do, the decree imposed a distinction between 'greater' and 'lesser' vavassors, and gave a right of appeal to the Emperor to the former while withholding it from the latter.

I have learned most of this episode from Fiefs and Vassals: The Medieval Evidence Reconsidered, by the English historian, Susan Reynolds (Oxford, 1994). She writes of Conrad's decree, "There is much that is difficult to interpret in all this. ... Conrad was dealing with a particular crisis, his ordinance contained no interpretation clauses to explain the words he used, and the next century would see large changes in society, politics, and legal argument. It is therefore vital to try to look at the 1037 ordinance in its contemporary setting rather than through the interpretations lavished on it by professional and academic lawyers in the twelfth century and later who assumed that it was designed to deal with their problems in the way that they needed."   

In other words, the decree was intended to be a bandage, not a constitution. Drafted in the heat of conflict, it dealt only with the problems palpably at hand and was un-self-consciously contoured to fit them. But nobody had ever written such things down before, and the decree of 1037 was the grain of sand around which the pearl of feudal theory grew - secreted by lawyers, not knights. The legal profession as we know it got its start in Northern Italy shortly after Conrad's intervention at Milan. Laymen began to study customs and contracts with rigor. The local economy was prosperous enough not only to support but to need lawyers.  In effect, the emergence of lawyers signified the extension of monastic leisure into the secular world. Like churchmen before them, lawyers favored written evidence where they found it, and when they found it they took it to mean what they needed it to mean, not what it might have meant originally. In this way, the myth of 'feudalism' got going. 

What intrigues me about the decree of 1037 is that it marks the passage from a customary society to a legal one. Hitherto, 'custom' had been little more than an accumulation of diverse practices, its terminology too loose for logic, and its force decided largely by the physical prowess of its enforcers. With the decree, it came into focus and generated law. Neither kings nor lords would be so free to make things up as they went along. The roots of feudal society may lie in the dim prehistory of Frankish warriors, but its first shoots were nurtured by men who spent most of their time reading. (2003)

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