- Introduction:
The feudal system of land tenure was introduced in Ireland by Normans. In this regard, the feudal system primarily worked on the principle that the ownership of all land eventually lied with the crown. This principle was base on the presumption that private bodies could not directly own land. The feudal system of tenancy completely disregarded and did not recognize the modern relationship between the landlord and tenants. To this end, grants of land over a period of years were regarded as creating personal contracts only. Nevertheless, it did contain certain characteristics of modern landlord-tenant relationship. The land ownership structure was characteristic by feudalism and it was very deeply structured in the following order:
King: The King was at the top of the feudal pyramid and all the title to the land ultimately vested in him. All the other lords derived their holding rights from the King.
Tenant-In-Chief: Tenant-in-Chief was a person who held his lands derived title to his lands directly from the king as against deriving title from another nobleman.
Tenant-In-Mesne: A Tenant-In-Mesne in the hierarchy of the feudal system was the one who had vassals who held land from him. However, such Tenant in Mesne was also himself the vassal of a higher lord i.e., tenant-in-chief.
Tenant in Demense: Tenant Demense were at the bottom of the feudal pyramid. They were the ultimate workers who derived their holding rights from Tenant-in-Mesne.
- Analyses
- Detail of Tenures
Historically, the tenures were primarily categorized into two categories, namely (a) free tenure; and (b) Unfree tenure. To this end, unfree tenure referred to tenures of serfs who performed menial services. Various types of free tenure were used as a means of ensuring performance of all the services required by the state. Following are, inter alia, various kinds of free tenure:
- Military Tenure: Various military needs were fulfilled through granting of the tenure to knigts/military personnel’s. The Military tenure obliged the tenant to perform some honourable and often services of personal nature. As the name suggests, knight service involved execution and performance of military duties for the king or other lord. However, by the middle of the 12th century such service was more often than note commuted for a payment called scutage.
- Frankalmoign Tenure: Spiritual welfare was provided for by frankalmoign tenure, i.e., granting lands in charity to religious bodies. This type of tenure was also commonly known as "tenure in free alms". To this end, Gifts to religious institutions in free alms were considered first as gifts to God. A large number of religious institutions derived their title to the lands through this tenure. Further, this type of tenure was expressly exempted from the Tenures Abolition Act 1660.
- Serjenty Tenure: This kind of tenure was granted by the King to those officials whose personal service was required. This kind of tenure ranked in between tenure by knight service and tenure by scorage.. This kind of tenure was actually for the performance of certain duties other than the knighted service. To this end, this kind of tenure was usually for the discharge of household duties in the house of knight/nobles.
- Scorage Tenure: The socrage tenant, or socager, was at the lowest level of the feudal pyramid. This tenure was granted to those who held their land and returned the favour by performing various duties required to be performed by their lords. This kind of tenure entailed payment of sums of money to the landlords periodically. This kind of tenure would fall in the category of free tenure. This was the most prevalent kind of tenure. The services attached to these tenures were basically agricultural in nature. For example, ploughing for a specific number of days in each year etc.
- Statutory Reforms vis-à-vis decline in feudal system
- Subinfeudation and substitution: An important characteristic of Ireland’s feudal system was subinfeudation. Under this system, transfer of land was affected by landlords in favour of tenant through a ceremony known as “feoffment”. As pointed out by Paul Ward, “Another form of transfer was “substitution” where one tenant took the place of the other tenant and owed the incidences of the tenure to the overlord. The lord’s permission was required for substitution.”
- Magna Carta 1217: The Charter of 1217 attempted to meet the objection of alienation without consent. To this end, there was a prohibition on tenants to alienate so much of the land that the part retained would not be sufficient to render service to the landlords. This was designed to prevent excessive fragmentation and sub-division of the land. Further, the charter also forbade the conveyance of land in favour of mortmain i.e., into the dead head of religious bodies and monasteries.
- Quia Emptores, 1290: On account of rise in the monetary value of the products that could be realized from the land, there was a decline in feudal system. As there was a gradual failure of the feudal system, the king introduced the statue of “Quia Emptores” so as to put a stop to further deterioration. .As per Quia Emptores, transfer through substitution was allowed provided the lord’s prior consent was obtained. ‘Quia Emtores’ ultimately led to a decline in the feudal system on account of the fact that both the landlords and tenants began to transfer lesser interest in lands than in fee simple estates.
- Tenures Abolition Act (Ireland) 1662: Feudal system was ultimately abolished by Tenure Abolition Act, 1662. The foregoing abolished abolished military style tenures and their incidences replacing them with free and common socage tenures but incidences of such tenure changed from services to rent.
- Succession Act (Ireland) 1945: The enactment of this statute again led to reform in the laws relating to the succession of the property.
- Land and Conveyance Law Reform Act (Ireland) 2009 Abolition of Feudal Tenure (2009 Act):
This Act can without any doubt be regarded as a major Act. The enactment of the 2009 Act has repealed several old statutes in accordance with the recommendation of the Law Reforms Commission. Schedule 2 of the Act provides for the repeal of about 150 pre-1922 statutes as the repealed statutes are now substituted with modern statutory conditions. As pointed out by J. C. W Wylie rightly points out that the 2009 Act primarily abolished the Quia Emptores that primarily gave recognition to the feudal system of tenure. The 2009 Act however contains a saving provision for the rule against inalienability which is one of the most important characteristics of freehold land or at least that of fee simple estate. It is further pointed out by J.C.W Wylie that the 2009 Act preserves the position of the State under the existing statute law consequentially leading to the saving of the management and control function of the State under the State Property Act, 1954. Further, the position of the State as the “ultimate intestate successor” is also safeguarded.
Further, as the Law Reform Commission’s recommendation concerning the reforms as implemented by the United States of America pursuant to independence was followed, the concept of ‘estate’ in the land was retained while the concept of ‘tenure’ was abolished. The Law Reform Commission further suggested that the appropriate time to consider the replacement of the concept of estate in addition to the tenure was when most, if not all, land in the State would become ‘registered land’. Furthermore, the 2009 Act contains an express saving for fee farm grants. Furthermore, certain customary rights and franchise rights were also saved by the 2009 Act.
In pursuance of the policy to retain abolish the concept of tenure; nevertheless, to retain the concept of estate, the 2009 Act provided a concept of new statutory concept of ownership of land on the basis of the concept of estate or interest in land. Such estate would retain the pre-existing characteristics without any incidence of tenure in light of the abolition of the concept of tenure. The clarification about the concepts of ‘estates’ and ‘interest’ in Section 11 and 12 of the 2009 Act is reflective of the changes in the law of estate and interest made by the 2009 Act itself. It abolishes the fee tail estates and prohibits the making of new farm grants.
Conclusion
William Fry further states in his article that the 2009 Act has abolished the remainder of the feudal tenure that may have survived. However, as rightly explained by J.C.W. Wylie in “Irish Land Law” the 2009 Act has minimal impact on the tenure on the law relating to tenure and estate. This is because the practical significance of tenure was fundamentally nullified prior to the enactment of the 2009 Act. Aside to this, the 2009 Act has retained the laws of estate with most of the existing characteristics. The 2009 Act, nevertheless, has reformed the laws of estate by largely abolishing certain of freehold estate and further reducing those recognized as conferring legal ownership. The 2009 Act is rather conceptual or symbolic in nature as in terms of concept it makes a clear break from the past by severing ownership from the attributes of tenure and other royal prerogatives. To this end, the concept of ownership of land is now based upon statute books as delineated in Part 2 of the 2009 Act.
REFERENCE LIST
- Gabriel Brennan “Landlord and Tenant” (P.6-Oxford University Press).
- Bloch Feudal Society Volume 2 p. 333
- WILLIAM 0. MORRIS, IRELAND 1494-1868, at 8 (Cambridge, The University Press 1896): Retrieved from http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1653&context=mulr
- http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1653&context=mulr
- William Fry “Land and Conveyance Law Reform 2009http://www.williamfry.ie/Libraries/test/Land-and-Conveyancing-Law-Reform-Act-2009.sflb.ashx
- POMFRET, supra note 11, at 18; WOODHAM-SMITH, supra note 4, at 33
- J.C.W. Wylie “Irish Land Law. 4th Edition
- Land and Conveyance Law Reform Act (Ireland) 2009 Abolition of Feudal Tenure (2009 Act)
