{104} Feudal tenure of land was not the only form known in the Middle Age. Other more ancient forms still existed in exceptional cases; as here: land held by proprietary right, that is, allodial possessions that had never been feudalized; land held as libellum or precarium, which are about the same. A libellum was a piece of land held by one person from another for a term of years, for life, or with the right of inheritance, for a fixed rent, the libellus being the charter or grant. Libellum, precarium, usufruct, and emphyteusis, are forms of land-holding known to the later Roman law, and differing one from the other only very slightly.
230. The Feudal Law of Frederick I for Italy, 1158.
Ragewin, Gesta, IV, ch. 10; M. G. LL. folio, II, pp. 113 f; Doeberl, IV, no. 37 c.
Frederick, by the grace of God emperor of the Romans, Augustus, to all the faithful subjects of our empire....
At the diet of Roncaglia, where we held a court of justice, as was the custom of our ancestors, the princes of Italy, the rulers of the church, and other faithful subjects made complaint that their vassals were in the habit of pawning or selling the fiefs and benefices which they held of them without their consent. Thereby the princes were deprived of the services due them from these fiefs and the dignity and the revenues of the empire were diminished. Having taken counsel with the bishops, dukes, margraves, counts, palatines, and other nobles, we therefore decree by this edict that no one henceforth shall sell or pawn or devise by will or in any way dispose of his fief or any part of it without the consent of the lord from whom he holds it. The emperor Lothar commanded under similar circumstances that such things should not be done in the future; we, however, hereby declare void not only future alienations of this sort, but also all illegal alienations that have already been made; the purchaser of the fief in such cases shall have an action at law against the seller for the recovery of the price, without regard to the length of time that has elapsed since the transaction. And as some resort to fraudulent sales and transfers under the form of free investiture after receiving the purchase price, we declare that such fictitious sales are void and condemn both seller and purchaser to the loss of the fief, which shall revert to the lord. Any lawyer who draws up such a contract knowingly shall be deprived of his office and lose his hand and be stigmatized with infamy. If any person over fourteen years of age, who has inherited a fief, fails through his own negligence to seek investiture for it from his lord within a year and a day, he shall lose the fief and it shall revert to the lord. If any vassal refuses to obey the summons of his lord to accompany him on an imperial expedition, or fails to come at the time set, or to send a suitable person in his place or to give half the revenue of the fief [as compensation for his service], he shall lose the fief and it shall revert to the lord.[{105}]
Duchies, marks, and counties may not be divided.[{106}] Any other fief may be divided if the co-heirs desire, but on the following conditions: Everyone who holds a part of the fief shall swear fidelity to the overlord; no vassal shall have more than one lord for one fief; and the lord shall not transfer the fief to another lord without the consent of the vassal. Vassals shall be responsible to the lord for the conduct of their sons; if the son of a vassal offends the lord, the father, on pain of losing his fief, shall compel him either to make satisfaction to the lord for his fault or to leave his household. If the son refuses to obey, he shall not be allowed to inherit the fief on his father’s death unless he has made satisfaction. Vassals shall in a similar manner be responsible to their lord for the conduct of their vassals, and all their dependents.
In case of a controversy between two vassals of the same lord in regard to a fief, the matter shall be tried and decided by the lord. In case of a controversy between a vassal and his lord, it shall be decided by a court of peers of the vassal, sworn on their oath of fidelity to do justice in the case.
We also decree that in every oath of fidelity the fidelity to the emperor shall be excepted by name.
{105} Notice the attempt of the king to enforce his authority in military matters over the vassals of his vassals. In strict feudal law the rear-vassal was responsible only to his immediate lord for the fulfillment of his duties, but the king generally claimed authority over them in matters in which the welfare of the state was concerned, as in the matter of military service in public wars.
{106} In Germany the great lords retained for a long time in theory their character of public officials and their fiefs were regarded as administrative districts of the state. Hence the idea that they were indivisible, a character which still adhered to the lands of the electoral princes in later times (see [no. 160, Golden Bull, ch. XX]).