RECIPROCITY OF RIGHTS OF LORDS AND VASSALS

In the same period, and chiefly between 1050 and 1150, various forms of personal subjection of vassals to lords became transformed into property obligations, and at the same time various forms of direct economic domination by lords became commuted into taxes, leaving vassals with substantially more personal freedom and economic autonomy.

Personal subjection of vassals in the ninth and tenth centuries had taken the form of the right of the lord to require the vassal to perform military service, the right of the lord in certain cases to marry (or marry off) the vassal's daughter, the right of the lord to the personal assistance of the vassal in the event of need, and various other such lordly rights. In the eleventh and twelfth centuries, the duty of military service was generally commuted into money payments (in England and Normandy, "scutage"), the right of marriage was generally commuted into a onetime tax on the marriage of a vassal's daughter, and the right to personal assistance was also generally commuted into various taxes ("aids").

Economic domination had previously taken the form, in many places, of the power of the lord to enter the fief and supervise its administration and take its products, the absence of any right on the part of the vassal to alienate the fief, and the power of the lord to have it back on the death of the vassal. In the eleventh and twelfth centuries these powers of the lord were subjected to stringent legal limitations. The concept of "seisin" was developed in the eleventh century to characterize possessory rights of persons who "held" land or goods without owning them; one who was "seised" could not be forcibly ousted by anyone, nor could his chattels be lawfully taken from him against his will -- even by his lord. Also, the development of the heritability of the fief by the vassal's heirs was accompanied by the development of its alienability by the vassal.

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Subinfeudation or other form of alienation, a tax was to be paid to the lord.

These legal developments in the direction of reification of rights obviously fostered the increased economic autonomy of the vassal. More and more his obligations to the lord were expressed in terms of payments, whether in kind or in money, instead of in terms of personal services as before. More and more he managed the fief without the lord's strict personal oversight.

The increasing legal protection of vassals is not to be interpreted, however, as the victory of one economic class over another. Except for the king, who was liege lord of all, every lord was also someone else's vassal; and as the result of subinfeudation every vassal who held a fief was also someone else's lord, except at the lowest rung of the ladder where the lord of the manor ruled not over vassals but over serfs and other peasants.

As Marc Bloch writes: "In a society in which so many individuals were at one and the same time commended men and masters, there was a reluctance to admit that if one of them, as a vassal, had secured some advantage for himself, he could, as a lord, refuse it to those who were bound to his person by a similar form of dependence. From the old Carolingian capitulary to the Great Charter, the classic foundation of English liberties, this sort of equality in privilege, descending smoothly from top to bottom of the scale, was to remain one of the most fertile sources of feudal custom." 9Bloch's reference to the Carolingian period seems to contradict the emphasis that has been placed here on the changes that occurred in the eleventh and twelfth centuries; but only two pages later, Bloch makes the crucial distinction: "As early as the Carolingian age, custom favored the claims of descendants [of vassals to inherit]...

These developments in the direction of increased personal freedom and economic autonomy of vassals were especially manifested in the legalization of the element of reciprocity in the lord-vassal relationship. Of course, a certain degree of reciprocity was always present in the relationship; to become "the man" of a lord always required an acceptance by the lord of a lifelong relationship involving not only the man's loyalty but also the lord's loyalty, and when this was joined with enfeoffment of the vassal a reciprocal landlord-tenant relationship was also established. Yet the practice of reciprocity in these loose forms, and even the acceptance of a binding customary norm of reciprocity, was a far cry from the full-fledged contractual reciprocity that began to be associated with the lord­vassal bond in the eleventh century.

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The phrase "contractual reciprocity" is subject to a qualification: the feudal contract (whether of homage or of fealty without homage) was a contract to enter into a status. In that sense it was like a marriage contract, to which in fact it was compared by the twelfth century jurists. In contrast to commercial contracts, for example, virtually all the rights and obligations of the lord_vassal contract were fixed by (customary) law and could not be altered by the will of the parties. The contractual aspect was the consent to the relationship; the legal content of the relationship, however, was ascribed. In addition, the contract of homage could not be dissolved by mutual consent because it w as founded on sacred vows of lifelong commitment. On the contrary, the contract of fealty could be dissolved by mutual consent, and both the contract of fealty and the contract of homage could be dissolved by one party upon breach of its fundamental obligations by the other.

It is sometimes suggested by writers on feudalism that the homage of the vassal was reciprocated by the grant of a fief. That suggestion confuses homage and fealty. The reciprocity in homage consisted of the fact that the vassal became the lord's man in return for the lord's becoming the vassal's lord; this was the lifelong relationship, sealed by a kiss, the equivalent -- almost -- of a marriage. 11The vassal's pledge of faith (fealty) to the lord was another matter. That was reciprocated by the lord's pledge of faith to the vassal. In addition, the lord often invested the vassal with a fief. The vassal's pledge of fealty included the duty to manage the fief faithfully. The lord's pledge of fealty included the duty not to overstep the legal limitations upon his powers as well as the duty to assist the vassal in various specific ways. The vassal could owe homage and fealty to more than one lord, just as he could hold different fiefs of different lords. A system of ligantia developed in the mid-eleventh century in France and elsewhere, under which a vassal reserved his obligations to one or more "liege lords." In England from the twelfth century on, the king was always a liege lord and at enfeoffment the vassal was required to say: "save my fealty due to the king." As fiefs became heritable and alienable, within broad legal limits, vassalage was once again separated from homage and became subject to its own rules of reciprocity.

Of critical importance from a theoretical standpoint, and not without substantial practical importance in unusual situations, was the right of either the vassal or the lord to dissolve a contract of homage or of fealty upon sufficient provocation. If one party violated his obligations and thereby caused the other party serious injury, the latter had the right to dissolve the relationship by a solemn gesture of defiance, called diffidatio ("withdrawal of faith"). In the first systematic treatise on English law, written in 1187 and attributed to Glanvill, it was stated that a vassal owed his lord no more than a lord owed his vassal, reverence alone ex- 306- cepted, and that if the lord broke faith the vassal was released from his obligation to serve. The diffidatio is a key to the legal character of the feudal relationship in the West from the eleventh century on. Moreover, as Friedrich Heer has written, the diffidatio "marked a cardinal point in the political, social, and legal development of Europe. The whole idea of a right of resistance is inherent in this notion of a contract between the governor and the governed, between the higher and the lower." 12