Introduction

“Five thousand archers then raised their long bows and loosed a volley of arrows so dense, so fast, and so furious that the sky literally darkened over as though a cloud had passed before the face of the sun. One can imagine how the English stood listening to the reverberations from the bow-strings and the whistling of the flights as they spread through the air, followed, after a few heart stopping moments, by the thud of bodkin arrowheads striking through plate-metal armour and tearing into flesh, and the screams of the wounded and dying.1”

Outnumbered by at least four to one, the victory of the English under Henry V at Agincourt provides direct evidence of how the feudal system had flourished in England. Transplanted from France by the Normans under William of Normandy aka William the Bastard and, later, King William I of England, the version of feudalism which took hold in England following William's defeat of the Anglo-Saxon King Harold at Hastings in 1066 was returned victorious. The resounding triumph at Agincourt echoed elements of the earlier Battle of Crécy in the long-running series of wars now known as the Hundred Years’ War.

Barker in Agincourt goes into splendid detail not only on the battle itself but also on the run-up to the campaign. She describes how Henry IV in 1410 reissued Edward III’s English Archery Law Act of 1363 making it compulsory for all able-bodied men to practice archery on every Sunday and feast day2 and adds that 'an archer who could not fire ten aimed arrows per minute was not considered fit for military service'. A small detail, this obligation defining how a man would spend his Sunday goes to the heart of what is known as the feudal system, and accounts in large measure for the English victories at Agincourt and Crécy. So what was the feudal system?

The Feudal System

A lengthy discussion of the feudal system is beyond the scope of this essay and is complicated by the variety of feudal systems which rose across Europe following the fall of the Roman Empire. Gibbon, in his seminal Decline and Fall of the Roman Empire dates the fall to 476 when the last Roman emperor was deposed. It could be said that feudalism developed as an appropriate response to the chaos, disorder and anarchy which followed the collapse of a highly structured and organised society. Lynn Harry Nelson, Emeritus Professor of Medieval History at the University of Kansas has written of the need to adapt 'to a moneyless economy, inadequate transportation and communication facilities, an

1 Barker, Agincourt: The King, the Campaign, the Battle (Abacus 2005) 293.2 Ibid 90.

ineffective central government, and a constant threat of armed attack by raiders such as the Vikings, Magyars, and Saracens3'.

It is certainly true that feudalism spread rapidly throughout the European continent and even further afield with Augustus Prinsep describing in the Journal of the Royal Asiatic Society of Great Britain and Ireland a feudal society existing in Palamow in India as late as 18144. Despite the wide geographic spread and time span there were certain commonalities to the various feudal systems which are worth elaborating.

In essence, feudalism was based on the institution of the monarchy with grants of land and position flowing downward in a pyramidical structure and corresponding obligations, originating from the grants, flowing upward. Typically a king, having claimed radical title through force of arms, would grant manors to tenants-in-chief who in turn transferred parts of their landholdings to tenants-in-mesne. Towards the bottom of the pyramid would be found so-called freemen and, below them, peasants or villeins. The terminology varies depending upon the geographical jurisdiction but the principles transcend differences of nomenclature. Needless to say, neither the king, the feudal lords nor, indeed, anyone in the feudal system transferred land – which at this time was the primary source of wealth, status and power – expecting nothing in return.

Services

De Londras describes the king as allowing vassals to hold land from, or under, him in a tenurial system5 and how with each grant came obligations. The particular form these took would depend on the nature of tenure which, in turn, normally flowed from the status of the grantor and grantee.

One form of tenure was military service such as knight’s service whereby land was held on condition that the holder present ready and equipped for battle when called upon along with a specified number of armoured cavalrymen, men-at-arms and archers. Knight’s service tended as time went on and soldering became an increasingly professional occupation to transform into scutage, a payment of money in lieu of providing men.

A person given a grant under serjeantry was obliged to perform some service for the lord. Under what was described as grand serjeantry the king might grant

3Nelson, The Rise of Feudalism: 850-1000 AD, The University of Kansas http://www.vlib.us/medieval/lectures/feudalism.html.4 ‘The villages and estates thus allocated remained, however, in the hands of their holders, as military fiefs, emanating from the Raja, not being hereditary or transferable without the Royal permission; and the condition of military attendance, with a certain number of followers when required, was attached to the grant.’ Prinsep, ‘On the Traces of Feudalism in India’ (1846) 8 Journal of the Royal Asiatic Society of Great Britain and Ireland 390, 393.5 De Londras, Principles of Irish Property Law (Clarus Press 2011) 23.

estates of land as a reward for loyalty or bravery and the obligation nominally expected of the grantee could be merely a token such as the presentation annually of a sword to the king. The real obligation, of course, was that the grantee must remain totally loyal to the king or feudal lord. Lyall distinguishes between grand and petty serjeantry on the basis that the latter was granted for more lowly services6 and records exist of lands having being granted for the service of holding the head of a seasick king on a trip to France.7

There was also frankalmoigne or free alms where lands were held by the church or monastic orders with prayers and masses offered in return for the feoffer, his forefathers and descendants. Such a seemingly one-sided bargain reflected not only the religious ethos of the day but also the fact that ‘the mediaeval church was a powerful economic institution quite apart from any spiritual attributes it may have possessed.’8.

Socage was another form of free tenure which normally involved provision of labour on the land of the feudal lord or, in the case of what is termed petit socage, the provision of goods. It should be observed that free tenure bears no relation to freehold. Rather it describes the status of the person holding the tenure. A free tenant had not only obligations to but also entitlements from the feudal lord including the right of peaceful possession of the land.

An unfree tenant had no such entitlements and was bonded to the land. As such an unfree tenant or villein could be alienated to the extent that the estate was alienable. De Londras describes villienage as both the general form of tenure and the social class of unfree tenants. Holdsworth elaborates that, at least initially, 'in legal theory the unfree tenant held at the will of the Lord'9. Even for unfree tenants, however, obligations and entitlements became formalised over the years as villienage evolved into copyhold tenure.

Incidents

In addition to services many forms of tenure carried what were known as incidents. These were a form of obligation which came up from time to time on the happening of certain specified events. The particular incidents were largely dependent on relationship between lord and vassal. Some incidents would be common to most relationships. Explicit loyalty to one's lord was expected and would normally be evidenced through homage and fealty ceremonies.

6 Llyall, Land Law in Ireland (Thompson Round Hall 2000) 55.7 Simpson, A History of the Land Law (2nd edition) 6 cited in Pearse and Mee, Land Law (Round Hall 2000 2nd edition) 48.8 Llyall, above n 6 58.9 Holdsworth, An Historical Introduction to the Land Law (The Lawbook Exchange 2008) 41 originally published by London Oxford University Press 1927.

There were many incidents such as aid, primogeniture and so on but the flashpoint incidents can be identified as the ones which those affected by them sought to reform. In this respect, the Magna Carta 1215 and its slightly modified Irish form the Magna Carta Hiberniae 1216 can be seen as a list of the main complaints with how the feudal system was operating. Discussion will be confined here to what participants in the system at that time clearly saw as egregious abuses.

Suit of court entailed physically presenting at the court of the lord or king and was likely a test of continuing loyalty. Though this seems quite a simple requirement it served as a reminder of status and placed the vassal literally at the ‘beck and call’ of the lord. Failure to attend carried severe consequences and a good indication that this was being abused can be seen in the fact that the Statute of Marlborough 1267 set down that the number of attendances should be specified.

Wardship and marriage became especially contentious incidents. The grantor was entitled to wardship of the tenement where a tenant died before his heir had reached the age of majority which at the time was 21 years old for a man and 16 years old for a woman. He would also be in a position to propose a marriage of the heir incipient and collect payment as a ‘fine’ whether the proposed marriage be accepted or refused. The concept of acting as a trustee must not have been as well developed as today since wardship was often exploited to extract money. The Magna Carta Hiberniae is principally concerned with establishing rules on inheritance, marriages and wardships. On the latter it states: ‘The guardian of such an heir under age shall not take of his land aught save rightful issues, customs and services, and these without destruction of men or goods’10 which suggests these were major concerns.

If wardship did not apply because the heir was of the age of majority an inheritance tax known as a relief would still be payable. Such a relief could be quite hefty and Lyall states they were often equal to one years value of the land. Reliefs being set too high were also an issue addressed in the Magna Carta Hiberniae which explicitly sets out the amounts to be paid11.

Escheat was the process by which a tenurial relationship was terminated. Escheat most often arose where a tenant either died without an heir or was convicted of a felony. Dying without an heir was ascribed to ‘a defect of the blood’ and the feudal lord assumed the tenant’s former position. Commission of a felony was punishable by death and would also result in the king gaining entitlement to the estate for a year and a day before it escheated to the feudal lord. Forfeiture came about where the crime committed was treason as opposed to a ‘mere’ felony. Treason caused all tenures between the king and the

10Magna Carta Hiberniae, 1216 http://www.irishlaw.org/siteinfo/brehonlink.shtml.11 ‘A hundred pounds for the whole barony of an earl, a hundred pounds for the whole barony of a baron, and a hundred shillings at most for the whole knight's fee of a knight; and he who owes less shall give less, according to the ancient custom of fees’, ibid.

treasonous tenant to be voided with the result that the King became entitled to all the land and so could grant it to a new tenant.

When Worlds Collide

To Richard de Clare and his men, arriving in Ireland in 1170, the Celtic society they found must have seemed to them instantly recognisable, such were the superficial similarities to the feudal society they had departed in England. They found a king, a court and a structured system of defined relationships. The titles were different but a pyramid composed of brehons, free tenants, farmers, gavillers, cottiers and betaghs appeared to correspond to the familiar feudal pyramid. Crucially, however, there were fundamental differences; the main ones being that the Irish system was clan or tribal based and decentralised. Wylie observes that ancient Irish society ‘knew nothing of the Norman theory of centralisation through a system of land tenure emanating from one chief lord or king’12.

The Anglo-Normans introduced their system; though this was restricted to the lands they had conquered. This confined the application to the Pale and some other areas outside. Even there, the application was not uniform nor was the feudal system guaranteed to survive transplantation. Prendergast describes how:

"The Irish enemy" now became an excuse for feudal duties neglected, and feudal payments withheld. The government of Ireland became impossible to strangers from England. The English lords of Ireland had always means of moving the Irish to rebellion by oppressing them, or to attacks on their neighbours, or the King's officers, by secretly egging them on. The judges, who from the days of the first settlement had regularly ridden their circuits in Munster to administer the feudal law, now ceased to hold assizes13.

The Statute of Kilkenny of 1367 forbad the Anglo-Normans in Ireland from, amongst other things, marriage, concubinage, or hurling games with the native Irish. It also prescribed dressing like them or speaking Irish14. The need to specify that these things should not happen suggests that they were both widespread and seen by the authorities as worrying developments.

It would take almost five centuries and repeated attempts before the old Brehon land laws such as tanistry and gavelkind were completely abolished15 and the feudal system of landholding fully established throughout the island of Ireland.

12 Wylie, Irish Land Law (Bloomsbury Professional, 2010 4th edition) 11.13 Prendergast, The Cromwellian Settlement of Ireland (PM Haverty 1868) 44.14 Statute of Kilkenny, A Statute of the Fortieth Year of King Edward III (1367) http://www.ucc.ie/celt/published/T300001-001/index.html

Not being able to claim allodial title under the First Occupancy theory of Pufendorf 16, the conquerors had resort to Locke’s elaboration of that theory whereby the productive use to which the land was put was taken into account. Accordingly, Sir John Davis goes to some lengths to argue that the traditional practices of tanistry and gavelkind made possessions uncertain and that ‘uncertainty of estates has been the true cause of [the] desolation and barbarism in this land’17.

Such justifications are employed even today when force has been used to appropriate lands or goods and where the grounds for employing it may be a little shaky. The policy of ‘surrender and regrant’ whereby Irish chieftains were strongly encouraged to exchange traditional Irish title to land in return for title granted by the English monarch also suggests that the original title was seen as having some form of validity.

Decline of Feudalism

The tensions between the king and the English barony as evidenced by the signature of the Magna Carta at Runnymede in 1215 continued long after the death of John. If the Magna Carta can be seen as an attempt at reform of the feudal system, the Statute of Westminister 1285, the Mortmain Act 1279 and Quia Emptores 1290 can be seen as halting its further expansion. The Statute of Westminster mandated recognition of entailments while Mortmain prevented transfer of lands to ‘dead hands’ or what we would today mostly describe as bodies corporate. Quia Emptores legislated against further subinfeudation and recognised substitution with the dual effects that the feudal pyramid could not grow any bigger and that those who wished to exit it could do so by alienating their interest to another.

With time and the development of commerce the feudal system, which was based primarily on land, became less important. Alternative and more profitable modes of wealth creation came into being and merchants and professionals came to rival land owners. Add to this the effect the bubonic plague had on reducing population numbers, thereby increasing the value and standing of labourers.

15 ‘[T]his particular custom of Tanistry was examined; and first it was resolved that this custom was unreasonable and void ab initio’. Davis, ‘The Case of Tanistry: A Report of Cases and Matters in Law Resolved and Adjudged in the King's Courts in Ireland’ (1762) 92.http://books.google.ie/books?id=DKYAAAAAMAAJ&printsec=frontcover&dq=inauthor:%22Sir+John+Davies%22&hl=en&ei=9DLIToXUDMaHhQeVsMnFDw&sa=X&oi=book_result&ct=result&resnum=4&ved=0CD4Q6AEwAw#v=onepage&q&f=false.16 Waldron, ‘Property and Ownership’, The Stanford Encyclopedia of Philosophy (Winter 2010 Edition) 6 http://plato.stanford.edu/archives/win2010/entries/property/.17 Davies, ‘A Discovery of the True Causes why Ireland was Never Entirely Subdued’ (1612) reprinted in Maxwell, Irish History from Contemporary Sources (London, 1923) 351.http://www.scoilnet.ie/womeninhistory/content/unit2/davies.html.

The feudal system was being introduced in Ireland even as it fell into decline in England. The net result was that Ireland ended up with a form of feudalism which contained unique elements such as fee farm grants made non-obstante quia emptores or, in other words, despite the laws which existed prohibiting such estates being formed. Lyall gives specific examples of such grants including one made to Lord Burke of Brittas in 1633 of “the castle, town and lands of Brittas”18

If tensions existed between feudal lord and tenant in England, how much greater were they in Ireland where, as Judge Longfield described it, ‘the feudal relation, with its reciprocal rights and duties never existed in Ireland. Here the landlord never led his tenants to battle; if they fought in the same field, it was on different sides’19.

Conclusion

It was noted earlier that the feudal system generally was a rational and reasonable response which brought order where none existed. It was of its time and appropriate to the restoration of order following the collapse of the Roman Empire. The highly ordered and stratified feudal system undoubtedly cemented the social, military and political order of Norman society in England, though the late and stop-start nature of its introduction to Ireland arguably caused more societal, military and political problems than it solved.

In present-day Ireland, notwithstanding the enactment of the Land and Conveyancing Law Reform Act 200920, we can still see traces of the feudal system of landholding. The 2009 Act abolished the creation of any new feudal tenure but recognised that some forms still exist, possibly including undefined forms21, which can only be phased out with time. Accordingly, the feudal system of landholding can still be found almost 900 years after it was first introduced to Ireland in estates, leases for lives, fee farm grants and possibly other forms. A feudal language and vocabulary in relation to land law also remains as a legacy. Thus, we still speak of estates, landlords, tenants, entailments, and so on. Importantly, however, many of the concepts described by these words do not correspond to their original feudal meaning.

18 Lyall, ‘Quia Emptores In Ireland’ (Round Hall 2001) 12http://independent.academia.edu/AndrewLyall/Papers/915098/_Quia_Emptores_in_Ireland_in_Liber_memorialis_Professor_James_C._Brady._Round_Hall_Sweet_and_Maxwell_2001_pp._275-29419 Law Reform Commission, Report on the Rule Against Perpetuities and Cognate Rules (LRC 62 2000) 17 http://www.lawreform.ie/_fileupload/Reports/Perpetuities.pdf.20 Section 9(2) of the Land and Conveyancing Law Reform Act 2009 provides that ‘In so far as it survives, feudal tenure is abolished’. Section 9(3) then goes on to outline exceptions which preserve the position of the State, the concept of an estate, fee farm grants made notwithstanding Quia Emptores 1290, and ‘any surviving customary right or franchise’. Land and Conveyancing Law Reform Act 2009 (Number 27 of 2009) http://www.attorneygeneral.ie/eAct/2009/a2709.pdf.21 Section 9(2) of the Land and Conveyancing Law Reform Act 2009, above n 19.

While accepting, then, that feudalism has had a significant impact of land holding structures in Ireland, there is insufficient information to conclude that the feudal system was one of the most effective systems of either distribution or holding of land ever used in Ireland. Quite simply, there is not enough known of the systems which pre-date it and too much is lost to pre-history and time immemorial.

The situation is exacerbated by the fact that many accounts of the Brehon land laws are coloured by the fact that they come down to us from those, such as Sir John Davis, who were trenchantly opposed to them. Notwithstanding the work done by the Brehon Law Project22 we do not know enough of the system of laws which operated before the Anglo-Saxons arrived, and nothing at all of what existed before Brehonism.

From the little we know of pre-feudal landholding structures there are clear indications of developed and sophisticated practices. Under gavelkind, for example, it is known that where land was to be divided amongst sons, on occasion the youngest would make the division but the eldest would get first choice, the second eldest second choice, and so on. Lyall describes this as rule as ‘a product of legal skill of the highest order as well as a worldly-wise view of human nature’.23. As is so often the case, however, winners write history and we have seen already the efforts of Sir John Davies to discredit both tanistry and gavelkind.

Given the permanent nature of land and its importance to humankind, there is one thing of which we can be sure. People from the earliest days will have had systems of land management, including ownership, distribution and transfer. Feudalism is just one, albeit a significant one, of the many systems doubtless employed down the years and its importance should not be exaggerated merely because of its recent prominence and because it still extends tentacles of influence into the 21st century.

22 The Dublin Institute for Advanced Studies and University College Cork http://ua_tuathal.tripod.com/testdefault.html23 Llyall, Land Law in Ireland (Thompson Round Hall 2000) 62.

Bibliography

BooksBarker, Agincourt: The King, the Campaign, the Battle (Abacus 2005).Bean, The Decline of English Feudalism 1215-1540 (The University Press 1968).Guizot, General History of Civilisation in Europe (Apleton & Co 1838).Hallam, View of the State of Europe During the Middle Ages (Harper & Bros 1837).Holdsworth, An Historical Introduction to the Land Law (The Lawbook Exchange 2008).Llyall, Land Law in Ireland (Thompson Round Hall 2000).Londras, Principles of Irish Property Law (Clarus Press 2011).Niveux, L’Aventure des Normands (Constable & Robinson 2006).Pearse and Mee, Land Law (Round Hall 2000 2nd edition).Prendergast, The Cromwellian Settlement of Ireland (PM Haverty 1868).Wylie, Irish Land Law (Bloomsbury Professional, 2010 4th edition).Wylie, Landlord and Tenant Law (Tottel 1998 2nd edition).

ArticlesBarry, ‘The Advantages and Disadvantages of the Feudal System’ (Oxford 1843).Davies, ‘A Discovery of the True Causes why Ireland was Never Entirely Subdued’

(1612) reprinted in Maxwell, Irish History from Contemporary Sources (London 1923).Davis, ‘The Case of Tanistry: A Report of Cases and Matters in Law Resolved and

Adjudged in the King's Courts in Ireland’ (1762).Law Reform Commission, Report on the Rule Against Perpetuities and Cognate Rules

(LRC 62 2000)..Lyall, ‘Quia Emptores In Ireland’ (Round Hall 2001).Nelson, ‘The Rise of Feudalism: 850-1000 AD’, University of Kansas.Prinsep, ‘On the Traces of Feudalism in India’ (1846) 8 Journal of the Royal Asiatic

Society of Great Britain and Ireland.Waldron, ‘Property and Ownership’ (Winter 2010 Edition) The Stanford Encyclopaedia

of Philosophy.