Re: Irish feudal residues (was Re: Conduct)

sir_crispin_gaylord@xxxxxxxxxxx wrote:
Sean J Murphy wrote:

It might be appropriate to repost the following smoothly but
knowledgably written piece from Wikipedia at
http://en.wikipedia.org/wiki/Prescriptive_Barony:

'In Ireland, most originally-feudal titular baronies have long
disappeared through obsolesence or dis-use. However a small number
continued to exist either as submerged titles of members of the Peerages
of Ireland, Great Britain or the United Kingdom, or as titles held by
grand serjeanty. Those few that thus survive are traditionally
considered to be "incorporeal hereditaments", and continue to exist as
interests or estates in land, registrable as such upon conveyance or
inheritance under the Registry of Deeds of the Government of Ireland.

Following a report by the Law Reform Commission [link to large PDF
file], a Bill for proposed legislation has been presented and lies
before the Oireachtas to abolish the concept of the feudal system of
land tenure in the Republic of Ireland (ironically, it continues to
exist!). However, these titles will not be affected, and will continue
to exist as personal rights, customarily considered to be registrable
incorporeal hereditaments held in gross.'



Dear Sean

I cannot say that I am impressed by this article. First, I see no
evidence for the existence of an 'originally-feudal titular' anything
except for baronies that by writ are considered to have become peerages
within the Peerage of Ireland. Second, regarding these supposed
'submerged titles' I do not see how a writ would cause an Irish barony
to become a peerage of Great Britain or the United Kingdom rather than
of Ireland. Third, while mentioning that the feudal tenure of grand
serjeanty survived the Tenures Abolition Act (though with no
substantive survivals that are known to me) the writer has failed to
notice that feudal tenure of frankalmoign substantively surviving among
the landholdings of the Anglican Church of Ireland also survived said
Act. Fourth, I see no evidence of any tradition (or indeed any body of
law) suggesting that titular survivals exist as 'incorporeal
hereditaments'. Regarding the second paragraph it is my opinion that
with the exception of frankalmoign, the now theoretical grand serjeanty
and the now theoretical standing of Eire as ultimate landowner of all
lands within the state the clause that feudalism is abolished insofar
as it survives is nothing more than a statement for the avoidance of
doubt. As for the last sentence ' these titles will not be affected,
and will continue to exist as personal rights, etc' this is pure
puffery. What titles? What custom? Where registrable?


A generally persuasive critique of our learned friend's case, Sir Crispin. I wonder however if you may somewhat underestimate the extent to which residues of feudalism still permeate Republic of Ireland law, something I have been inclined to do myself. I continue to read through the 200-plus page 2004 Law Reform Commission paper on land law reform, based principally on the research of Professor J C W Wylie. Consider for example the following:

'Key features of the feudal system were the concepts that all land was held ultimately from the Crown (the concept of “tenure”) and that any person or body other than the Crown would hold (own) an “estate” in the land. It was the estate held which determined how long the person or body (or, if it was an estate of “inheritance”, heirs or successors in title) could own the land. The feudal system did not recognise “allodial” ownership – absolute ownership of land (rather than holding it from a superior “lord”) by any person or body other than the Crown (or State) – and this remains a feature of our law. Another feature of our law are the categories of “estates” developed dunder the feudal system, so that landowners today still own estates such as the “fee simple”, “fee tail” and “life estate”. In strict theory no person or body owns “the land” (the physical entity comprising the surface of the earth, as well as buildings and other structures erected upon it), but rather, what is owned is the somewhat metaphysical notion of an estate or interest8 in the land. It is the estate or interest in the land which can be bought and sold, leased and mortgaged, and several estates or interests can be owned by different persons at the same time in respect of the same piece of land.'

And the following:

'Considerable stimulus for the creation of fee farm grants was provided by the Landlord and Tenant Law Amendment Act, Ireland, 1860. This Act, invariably known as “Deasy’s Act”, introduced some radical changes to traditional leasehold land. One was to abolish the notion of tenure and, with it, the requirement that the landlord should hold a reversion in the land. Instead, the relationship of landlord and tenant in Ireland was in future to be based upon the “contract” of the parties. The precise effect of these provisions has long been controversial and the generally accepted view is that they were probably not as revolutionary as they had first appeared. However, what is clear is that it facilitated the creation of a new category of fee farm grant, one where the grantee obtained a freehold estate (fee simple), but subject to payment of a perpetual rent and performance of various other perpetual obligations. The grantor would hold no reversion, but would be entitled to receive the rent and to enforce its payment, and performance of other obligations entered into by the grantee, by invoking all the usual landlord’s remedies for enforcing a leasehold tenant’s obligations. Such grants grew in popularity and are still made in modern times.'

Not to mention:

'Various archaic methods of conveying land were developed under the feudal system, such as feoffment with livery of seisin, and although the modern form of a deed (a document “under seal”) was confirmed as an alternative by the Real Property Act 1845, those old forms have not, in fact, been abolished.'

And a more radical proposal which I don't think found its way into the bill:

'The time has surely come to recognise that the feudal concept of tenure has no place in the Irish legal system in the 21st century. A statutory provision similar to those enacted in various States in the United States should provide for its abolition and declare that all land in the State is allodial. For the avoidance of doubt, this should be declared to be without prejudice to the position of the State under the State Property Acts 1954 and 1998. Furthermore, it should also be made clear that the abolition of tenure does not affect the estates and interests which can be owned in respect of land.'

I am left with an impression that the provisions of the current Land and Conveyancing Bill may not in fact go far enough in abolishing feudal survivals in relation to land tenure. Of course the bill does not concern itself at all with the question of titles or designations, and since the Mac Carthy Mór scandal and the abandonment of MacLysaght's compromise of 'courtesy recognition', it is apparently considered that such matters are best left alone. If there are no further scandals, the restored OCHI behaves itself and nobody ever takes a title dispute to court, this solution of disregard will probably suffice.

Sean Murphy
.

Relevant Pages

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  • Re: Irish feudal residues (was Re: Conduct)
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