Feudal Layers of Ownership

Feudalism

The feudal system reflected and represented a power balance and relationship between the Kings and Lords and was an integral part of the political and economic structure in England.  This authority never fully held in Ireland in the medieval period and accordingly a dilute form only of the feudal system existed. 

It coexisted in particular with the Gaelic Brehon law system which took hold even inside areas held by Anglo-Norman magnates.  This system was more favourable to the Lord relative to the King. Similarly, in England, reforms of the feudal system were closely associated with struggles between the King and Lords.  Ultimately, a hierarchical system with the increasing supremacy of the King developed.

In the feudal system, each intermediate Lord had obligations to a superior Lord and was owed obligations by his subtenants and Lords.  The King, being at the top of the apex owed no obligations. Subinfeudation was the creation of a lower level sub-grant. It involved the creation of new levels in the feudal permit.   

New layers or sub-grants could potentially dilute the value of the services to Lords higher in the chain or the King.  A Lord might subinfeudate part of his holding at a nominal rent etc.  If the Lord’s interest fell into his superior Lord or the King by way of wardship, he would succeed to this right only which might be less than the value of the land. A similar positon applied to eschate o the King.

Transfer of Land

Substitution was  equivalent of modern assignment.  The Lord transferred his land to another Lord who held it from the superior Lord or King on the same terms.  A Lord or King might choose to object to the substitution of an inferior Lord.  Complications arose further if the land was subdivided on a number of occasions.  This greatly complicated collection of feudal rights and incidents on the part of the crown.

Magna Carta, the great charter, in the early 13th century claimed to prohibit tenants from transferring land that would leave insufficient land available to provide the services owed to their Lord.  It prohibited transfers of land into mortmain, to corporations /  religious bodies.  This is because being artificial non-natural legal persons, they did not die, marry etc., accordingly denying their Lord of many of the incidents of feudal tenure.

Quia Emptores

Arising from demands of feudal lords, the statute known as Quia Emptores  (from the preamble “Whereas buyers…”) contained significant provisions which had a lasting effect on feudal tenure.  Subinfeudation i.e. the creation of new sub-grants was prohibited. 

Free tenants were given the right to transfer the whole or part of their land by substitution, without their lord’s consent.  Where the transfer was by substitution or part, services and obligations attendant were apportioned.The effect of the statute was that the feudal pyramid  was restricted from growing.  Over time it became smaller due to lands escheating and forfeiting up the line. 

Quia Emptores secured the principle of alienability of land.  The general principle that land was saleable was critical to the development of the market economy. The statute was reflected in common law principles against inalienability.  Purported conditions which seek to make land entirely or substantially inalienable have been held void since that time.

The legislation applied to grants in fee simple.  It did not apply to fees tail and like estates.  It did not mention the Crown and it was interpreted that the Crown was not bound by it.  Tenants in chief were granted the right to  free transfer without consent by statute in the early 14th century.  A reasonable fine was payable to the Crown.

The non-application to the crown  was a matter of great significance in Ireland.  In Ireland, the Crown’s exemption from the statute enabled it to subinfeudation extensively.  This occurred in particular after the confiscation of lands of rebel lords / chiefs in the 17th century.

Abolition of Tenure

By the middle of the 17th century the Crown’s role had been curtailed, following the Civil War with parliament.  The Tenures Abolition Act Ireland 1662 was passed by the Restoration Parliament.  It abolished most forms of feudal tenure including knight service, tenures by homage and by socage of the King. 

The existing tenures were converted into free and common socage.  Most incidents attaching to tenure including wardship, fines on alienation and marriage and aids were abolished.  Ultimately feudal tenure became free and common socage or freehold.  To the limited extent that monetary obligations survived they were commuted to money.

Irish Position

In Ireland the common law system waned severely in the 14th and 15th century.  Famously, it was largely restricted to the Pale by the 15th century.  See separately the sections on medieval law in Ireland.  Brehon law was resurgent in this period and many of the Anglo-Irish magnates adopted it.

The Crown was not bound by Quia Empotores and made grants of land notwithstanding (non obstante).  Further, it purported to  grant rights to its tenants in chief to subinfeudate.  Certain such grants survive today in urban areas in the island of Ireland

In Ireland, the principal restrictions against inalienability were largely circumvented by the grant of long leases.  Over time, their rent became nominal so that the interest of the lessee was similar to a freehold interest.  However, it was subject to all the terms and conditions including restrictions on alienation applicable to leases.

Enfranchisement 

The notional theoretical basis of tenure deriving from the Crown became particularly anomalous in the Republic of Ireland after the 1922 and later the1937 Constitutions. The 2009 Land Reform legislation abolished feudal tenure insofar as it survived.  The legislation declares that estates and interests specified in the legislation are  the only ones recognized.  No tenurial incidents apply.  The old feudal legislation as far as they continue to exist was repealed.  The rule against inalienability of freehold land was reasserted.

Enfranchisement legislation has existed for over 170 years which converted certain long leases or allowed certain long leases to be converted into freehold.  Under some of the earlier so-called enfranchisement legislation, the leasehold interests which were converted into freehold interests retained some or all of their covenants after conversion to freehold interest.  Under modern landlord and tenant legislation, most covenants except a very limited type,  no longer survived.

The legislation is consistent with the State’s position in a modern context and as successor to the royal prerogative.  The state’s position derives from its authority granted by the people of Ireland under the Constitution.