As the proper investiture required the actual going upon the lands, which was often inconvenient, the improper investiture was introduced. This, which was the second kind mentioned, was also performed in the presence of the pares curiæ, thus: The intended tenant, in a most humble and lowly manner, prays the grant of such an estate from his lord; which, when the latter has agreed to, he invests him, by words signifying his grant, and what it is of, accompanied by some corporeal action, as delivering him a staff, a ring, a sword, or clothing him with a robe, which last, being the most common method amongst the great immediate tenants of the king, gave rise to the name investiture. After this, the tenant did fealty. But this improper investiture did not transfer the actual possession of the land without subsequent livery and seizin, and gave the tenant not a right to enter, but only a right of action, whereby he might sue, and oblige the lord to transfer it by an actual livery. For all these lands, being liable to services arising out of the profits for which the lord was bound to answer to the king, his possession of these profits by their rules was continued, until he had, by an act of public notoriety, namely, by giving livery and seizin on the land, put it out of him. And this maxim was, I apprehend, established also for the benefit of the co-vassals, who could better judge by their own eyes, on the spot, whether an injury was done by the grant to any of them, than by hearing the lands named and described elsewhere, as, in such case, it frequently happened that all the vassals were not present[101].
Hence, if the lord had granted lands by an improper investiture to A, and had afterwards, by livery and seizin, granted them to B, they became B’s, though he was the later invested; and the remedy A had against the lord was not for the lands themselves, for those he had already legally parted with to B, and could not recal, but for their value, in consideration of his having bound himself to fealty.
This was the form and manner of proper and improper investitures in the early times, before these barbarians had learned the use of letters, and was intended not merely for solemnity, but also to create such a notoriety of the fact, as it might easily be proved by viva voce testimony. For if it was denied, the tenant produced two or more of the pares curiæ, each of whom swore he had either been present at the investiture himself, or had constantly heard his father declare, that he was. And this, at first, was the only evidence admissible, and was abundantly sufficient, when the grants were only for one life. Such proof, however, could not be of any advantage to the church; for, though churchmen die, the church doth not, but continues to be represented in a succession of natural persons. If she, therefore, had not a more permanent evidence to produce than what I have before-mentioned, she could never, after some length of time, ascertain her rights. On this account brevia testata, or, as we call them, deeds, were made use of, which were written instruments, expressing the grant, and its nature, attested by some of the pares, and authenticated by the seal of the lord, or by his name and sign of the cross. When this kind of evidence was once introduced, as it was more fixed and certain than the frail memories of men, it became customary for the tenant, who had been invested either properly or improperly, to demand and obtain a breve testatum of that investiture, and afterwards other symbols in improper investitures went out of use, and the delivery of a deed became the ordinary sign; but this, as all other improper investitures, required a subsequent actual livery and seizin.
Having thus delivered the antient and proper method of constituting an estate for life, let us attend to the consequences, and see what were the several rights and obligations of the lord and tenant, and for that purpose examine the oath of fealty.
The general oath of fealty on the continent was thus: Ego N. vassallus, super hæc sancta Dei evangelia, juro, quod ab hac horâ in antea usque ad ultimum vitæ meæ diem, tibi M. domino meo, fidelis ero, contra omnem hominem, excepta summo pontifice, vel imperatore, vel rege, vel priore domino meo, as the case was. In England, Littleton gives this account of it. When a freeholder doth fealty to his lord, he shall hold his right hand on a book, and shall say thus: Know ye this, my lord, that I shall be faithful and true unto you, and faith to you shall bear, for the lands which I claim to hold of you; and that I shall lawfully do to you the customs and services which I ought to do, at the terms assigned; so help me God, and his saints; and he shall kiss the book[102].
The only differences are, that the words ab hac hora in antea usque ad ultimum vitæ meæ diem are omitted: for abroad none but tenants for life swore fealty. In England termers for years did; and that contra omnem hominem, excepto, &c. though implied, is likewise omitted; which exceptions, however, in the English law, were inserted in the doing of homage which the tenant in fee did to his lord.
Such was the general oath of fealty; but to shew what being faithful and true, and bearing faith comprehends, it will be proper to insert, from the seventh title of the second book of the feudal law, the larger oath, which persons, rude and ignorant of what the word fealty implied, were to take. It runs in these words: Ego juro, quod nunquam scienter ero in consilio, vel in facto quod tu amittas vitam, vel membrum aliquod, vel quod tu recipias in personâ aliquam læsionem, vel injuriam, vel contumeliam, vel quod tu amittas aliquem honorem quem nunc habes, vel in antea habebis; & si scivero, vel audivero, de aliquo, qui velit aliquod istorum contra te facere, pro posse meo, ut non fiat impedimentum præstabo. Et si impedimentum præstare nequivero, quam cito potero, tibi nunciabo; & contra eum, prout potero, auxilium meum tibi præstabo; & si contigerit, te rem aliquam quam habes vel habebis injuste vel fortuito casu amittere, eam recuperare juvabo, & recuperatam omni tempore retinere. Et si scivero te velle juste aliquem offendere, & inde generaliter vel specialiter fuero requisitus, meum tibi, sicut potero, præstabo auxilium. Et si aliquid mihi de secreto manifestaveris, illud, sine tua licentia, nemini pandam, vel per quod pandatur faciam; & si consilium mihi super aliquo facto postulaveris, illud tibi dabo consilium, quod mihi videtur magis expedire tibi; & nunquam ex persona mea aliquid faciam scienter, quod pertineat ad tuam vel tuorum injuriam vel contumeliam.
Besides the negative obligations, of doing nothing to the prejudice of the lord or his family, the positive ones the vassals lay under may be reduced to the two heads of counsel and aid; which, with us, are still the principal duties that the parliament, who are, or represent the vassals of the king, owe to the sovereign. Under counsel, not only giving faithful advice, but keeping his secrets was included. Aid may be either in supporting his reputation and dignity, or defending his person or property. Under the first, the vassal was not only to shew him the highest reverence, but was forbid to accuse or inform against him, except in the case of treason, where the supreme lord was concerned. He could not in a suit between them tender to his lord the oath of calumny, whereby he should be obliged to swear he thought his cause was just, and that he did not carry it on with an intent to harrass and distress; for this was throwing an aspersion on his lord’s character. He could not, for the same reason, bring any action against him, whereby he might be defamed, and particularly the interdictum unde-vi, which was a charge against the person sued, of an unjust and violent dispossession of property. Neither could he, in any cause that was not strictly feudal (for in such as were for the general preservation of that polity, he was permitted) bear witness against him. And, lastly, he was obliged to support his dignity, to attend his courts, and do suit and service, as a witness and a juror.