Nature of Tenure
Until very recently the idea of tenure was an integral part of property law. Tenure refers to the concept of holding land from another.
Originally under the Norman system introduced into Ireland following the Norman invasion in 1169, all land was held of the King. The King was Chief Lord. Landowners either held directly from him or indirectly from persons who held from him. There was no absolute ownership as such.
The feudal system of landholding was central to society, wealth and government in the medieval period. It constituted a mechanism for revenue-raising by the Crown. See generally the sections on medieval legal history 1169 to 1535.
Feudal Tenure Ireland
The feudal system of landholding from the King was well established in England by the time of the Norman conquest. It applied only to parts of Ireland. After initially applying widely, it was reduced down to the Pale by the middle of the 14th century.
English law was finally fully imposed on the whole of Ireland at the middle to late 17th century. However, by this time the feudal system itself had fundamentally changed and largely broken down. The modern era commencing in the early 16th century saw a fundamental change in the system of government, economy and society which rendered large elements of the feudal system redundant.
Vestiges of Tenure
Nonetheless, to varying and decreasing degrees the concept of tenure remained. Even after the establishment of the Irish Free State and later Ireland, the State succeeded to the Crown’s interests. In theory, land continued to be held from the State, which only had practical effect in very limited circumstances.
The practical effect of the holding of estates from the state diminished over time. In practice almost all estates were fee simple interests in possession. New estates and interests in land developed under the lease.
Layers of leases became prominent in the 17th and 18th century and remain so to this day, particularly in urban areas. However, this is fundamentally different from a freehold tenure being based on contract / agreement rather than status.
One of the last vestiges of tenure was the proposition by which land which had no owner would escheat to the Crown. The state succeeded in these prerogatives although questions arise as to whether the prerogatives in the traditional sense can continue. Those which necessarily vest in a democratic sovereign state survive.
A person does not own land as such but rather an estate or interest in land. Under the feudal system the King granted land to his immediate Lords who in turn sub-granted it to further Lords and so on, creating a feudal chain with the King at the apex. It established a hierarchical system of ownership.
The tenants holding directly from the King were referred to as tenants in chief. Lower subtenants were mesne or intermediate tenants and at the bottom level were tenants in demesne.
The use of the word tenant in this context differs from that which applies under the law of landlord and tenant. Tenants in this context were owners of freehold estates and were usually both personally free and have freedom of tenure. There were unfree categories of tenure.
The system of landholding effectively enabled the King to secure his power by ensuring that all subordinate Lords held their lands conditionally on loyalty and the provision of service is necessary to maintain the kingdom. This principle of Lord, under lord and tenant etc. was integral to the feudal power base. The tenant owed a duty of fealty or loyalty to pay homage to his Lord. This entailed a range of obligations.
Much of the income of the Lord and King derived from so-called incidents of tenure. These were various rights arising at certain times and junctures which tended to produce revenue and other benefits for the superior Lords and ultimately the King.
The obligations at the upper levels were to provide and procure subordinate lords. At lower levels, the obligations were principally to provide resources etc.
One of the principal benefits to Lords and ultimately the King was wardship. This gave the superior Lord the right to manage the lands of a Lord where the tenant at the lower level died, leaving an heir under full age.
The Lord could manage the undertenant’s lands subject to a duty to maintain the heir and not commit waste, until he reached maturity. At the end of wardship he had an additional right to a sum for surrender of the lands which was at one time prior to Magna Carta half year’s profit.
The superior Lord could choose a spouse for his tenant. If the tenant refused to marry, a fine was payable. At full age Lord was entitled to extract a sum referred to as relief equivalent to one year’s profits of the land. The superior Lord could demand certain payments from tenants on set occasions referred to as aid.
Reflecting the social structure, there were military and non-military free tenures. The main types of military tenure were grand sergeanty and knight service. The former generally involved direct service to the King. Knight service involved obligations of military service to the King. This provided the basis of the King’s military power.
Later in the medieval period, the obligations of military tenures could in some case be commuted to a monetary payment known as socage. This appears to have been common in Ireland from shortly after the Norman conquest.
Free and common socage was the most common type of tenure. The services were usually economic, generally agricultural in nature. Agricultural services were provided periodically and regularly. In later times the sums were commuted into payment of money.
Some versions involved direct service to the King. However, on the whole, tenures in socage did not have the same range of incidents as military tenure. They did not generally include homage, wardship or marriage. In some cases, these incidents were claimed as customary incidents, in particular in Ireland.
Religious tenures involved an obligation to pray for the Lord’s spiritual needs. They related to church lands s that were held by monasteries, Bishops etc. The most well-known was frankalmoign or free alms. Ecclesiastical lands were not necessarily held by religious tenure.
Unfree tenants had significantly lesser rights than free tenants. They had no so-called seisin in the land. They were not entitled to the protection of the King’s courts, as this protected tenant’s siezed of the land only. His only recourse was to his Lord’s court. One of the rights and obligations of the Lord was to hold a manorial court which determined disputes between his tenants.
Forfeiture & Escheat
If the under-tenant failed in his duty of loyalty to the King, his lands could be forfeited. This right belonged directly to the King. The right would be exercised by the Crown against any subtenants and not just those holding directly of the King.
Separate from this, a Lord could reserve a right to re-enter if his subtenant failed to perform obligations. This is equivalent to the concept of forfeiture in a modern landlord and tenant relationship. There was a right to forfeiture if there were services due for two years in arrear and there was no goods available for taking by way of distress.
In feudal times the tenants could not make a will granting the land to successors. If the tenant died without heirs his land escheated to his immediate Lord. Similarly, escheat took place if he was convicted and sentenced to death for a felony. The Crown had a prior right to year and a day waste. In the case of high treason, the lands were forfeited to the Crown.
Attainder and escheat were very significant in Irish history in the 16th and 17th century. In consequence of a succession of rebellions by many of the major magnates in Ireland, most of their land was forfeited and much was resettled by a new landed class. The result was that over the period from 1530 to 1695, the power of the traditional Irish magnates, both Anglo-Norman and Gaelic was all but completely destroyed.
The obligations of an unfree tenure were not fixed. They were subject to the discretion of the Lord to a greater extent than in respect of the particulars of performance of service. Some unfree tenants had the status of chattel / goods so that they could be sold by the Lord.
In England, village or copyhold was a type of tenure associated with the feudal manor. This was lord’s immediate manor house surrounds and was farmed by the Lord. Unfree tenants could be associated with and bound to the manor. Over time, customs developed to protect the unfree tenants in the Lord’s manor or court.
Their services were largely labouring and agricultural. The tenure did carry incidents of loyalty, escheat forfeiture and relief. Villeins ere not permitted to transfer the land without consent of the Lord who might extract a fine or payment. In England, the manor tenure came to be associated with villeins. They held their title by way of so-called copyhold. This referred to the enrolling of their transactions in the manor rolls.
It is not clear to what extent copyhold tenure and villeins existed in Ireland. The feudal system in its full extent, probably established itself for limited times and in limited parts of Ireland only.
Development in Ireland
Outside of cities, the Irish customs remained very strong and were adopted by many of the Anglo-Norman Lords. In particular, they gave a stronger position to the Lord relative to the King. The absence of submission of Lords to the King with feudal dues with consequent loss of revenue to the Crown was one of the main points of conflict between the King and the Irish Lords.
By the time of the forfeitures and confiscations of the 16th and 17th century, the feudal system had largely broken down. The modern world had emerged with the discovery of the Americas ,printing, the Renaissance and Reformation.
Occasional manor courts appear to have survived in Ireland until the 19th century. They were ultimately abolished in 1859 and their jurisdiction was transferred to the courts of petty sessions. Mid-19th century legislation on copyholds did apply to Ireland but ultimately when consolidated at the end of the century did not. In practice any remaining copyholds would have been swept away by the land purchase system.