The long shadow of the feudal doctrine of tenure in Australia

Oath of fealty (Middle Ages)

As foreshadowed in my last post, I return with some reflections on Love v Commonwealth: a case currently before the High Court of Australia in which two Aboriginal men, both non-citizens, are arguing against their deportation from Australia. The argument involves interpretation of the ‘naturalisation and aliens’ power in s51(xix) of the Constitution. In a nutshell: if the men are aliens (due to their overseas birth) then the Commonwealth can deport them. If they are not (due to their Aboriginality) then it cannot.

The case inherently involves land: land as sovereign territory, birth in foreign lands, native title, and connection to country. In spelling out the bounds of who is ‘in’ and who is ‘out’ – known in the common law as alienage – the law is concerned very much with place. It is the applicants’ birth out of place that ostensibly empowers the State to exclude these men from its territory. But it is their connection to this place, a connection recognised at law, that warrants a rethinking of the foundations of the relationship between Indigenous Australians and the State.

In common law, land upholds and manifests State power, and one of its iterations is as the law of alienage. However, it is perhaps inevitable that as a property lawyer, when I read the Love case I see the long shadow of the feudal doctrine of tenure.

The feudal doctrine of tenure

Described as part of an

unusually perfect feudal structure … imposed after the Norman Conquest

(Megarry and Wade, 1975)

the feudal doctrine of tenure was based on a twofold legal fiction: that the Crown originally owned all land; and that all titles to land were originally derived from Crown grant. As Michael Stuckey points out,

Feudalism, as a historical and legal construct, has provided the juristic foundations for much of what is, even today, readily accepted legal fiction.

And further:

By the time of the reception of English law into Australia the practical legal consequences of the idea of feudalism were minimal to say the least, yet in theory the jurisprudence of the common law could not be understood without recourse to the feudal idea.

The feudal doctrine of tenure involved a political, social, and economic system as well as a system of land ownership. Grants of land were made conditional upon ‘incidents of tenure’. These general obligations were the ‘glue’ of feudal society and its political system. They represented personal relationships between the King, as the ultimate grantor of land, and the lords. They applied also to relationships between lords and those who in turn held land from them.

Homage and fealty

Relevant to the question of alienage, one of these incidents of tenure was homage, fealty (and suit of court – but I will omit discussion of this). An overlord would grant land to a vassal following the ceremony of homage. The vassal would kneel before the overlord, put his hands in those of the lord and declare himself his man. The overlord bound himself by kissing the vassal and raising him to his feet. The vassal then swore an oath of fealty, vowing to be faithful to the overlord and to perform the acts and services due him. After the ceremony the lord invested the vassal with the land (known as a fief), usually by giving him some symbol of the transferred land such as a stick, or a clod of earth. This formal process cemented the personal relationship between lord and vassal.  

In other words, ownership of land was part of a system of promoting allegiance to lords and to the Crown. Integral to this system was the personal promise of homage and fealty undertaken through formal, public ceremonies associated with the handing over of that land.

William Blackstone described homage, fealty, and allegiance in his chapter on alienage:

This obligation on the part of the vassal was called his … fealty; and an oath of fealty was required, by the feudal law, to be taken by all tenants to their landlord, which is couched in almost the same terms as our ancient oath of allegiance … But when the acknowledgment was made to the absolute superior himself, who was vassal to no man, it was no longer called the oath of fealty, but the oath of allegiance; and therein the tenant swore to bear faith to his sovereign lord, in opposition to all men, without any saving or exception…

Further:

…all lands in the kingdom are held of the king as their sovereign and lord paramount, no oath but that of fealty could ever be taken to inferior lords, and the oath of allegiance was necessarily confined to the person of the king alone. By an easy analogy the term of allegiance was soon brought to signify all other engagements, which are due from subjects to their prince, as well as those duties which were simply and merely territorial. [emphasis added]

Of note, however, allegiance was ‘intrinsic’ or natural to all born within the dominions of the State:

For as the king, by the very descent of the crown, is fully invested with all the rights and bound to all the duties of sovereignty, before his coronation; so the subject is bound to his prince by an intrinsic allegiance, before the superinduction of those outward bonds of oath, homage, and fealty; which were only instituted to remind the subject of this his previous duty, and for the better securing its performance. [emphasis added]

Allegiance, homage, and fealty are abstract obligations that might be difficult to manifest in a tangible form. However, as Blackstone’s comment highlights, the obligation was given material form through a grant of tenure, with its attendant incident of homage and fealty. In other words, land mediated the responsibilities of the relationship in a material way.

My hypothesis is that land has continued to mediate the relationship between the State and an individual, albeit in less overt ways than through public performance of homage and declarations of fealty.

Tenure in Australia

By the time of colonisation of Australia, the incidents of tenure had been repealed and the various types of tenure had been rationalised into one – all land was to be held in free and common socage (an agricultural tenure). Any obligations to the lord, or the Crown, were in the form of money payments.

Allegiance to the Crown, though still relevant (including to alienage), had become uncoupled from its official link to the land itself. It had reverted to the abstract ‘natural’ duty arising simply because of the place a person is born: within the Crown’s dominions. The doctrine of tenure, however narrowed by 1770, nonetheless became the colonial law of the land in Australia:

But if the feudal system of tenures be, as we take it to be, part of the universal law of the parent state, on what shall it be said not to be law, in New South Wales? At the moment of its settlement the colonists brought the common law of England with them. [emphasis added]

AG v Brown (1847) 2 SCR (NSW) App 30

Despite the absence of homage and fealty as overtly performed conditions of tenure, the Crown continued to regulate its relationship with the populace through controlling land titles in furtherance of the colonial project. As Nicole Graham sets out in her book Lawscape, ‘settlers’ – freed convicts, squatters, military – were rewarded with grants and their stakes were validated by law. In the same way that the feudal doctrine of tenure had cemented personal relationships between the overlord and his vassal, so too did land grants in Australia uphold a relationship between the Crown and the landholder. In this case, the colonies grew into a community – or polity – built on relationships between landholders and the Crown that were mediated through land.

In establishing that the colonisers were in, as a feature of their landholding status, the common law simultaneously situated Aboriginal and Torres Strait Islander peoples out. The common law of tenures, imbued also through statutory leaseholds, was the sole method of landowning, and necessarily excluded the possibility of title derived from Indigenous Laws. The dispossession of Aboriginal and Torres Strait Islander peoples from their lands, managed by the technologies of the common law, positioned Indigenous peoples before the common law without the means of expressing their relationship positively with the State as one mediated by land.

Instead, Indigenous peoples’ relationship with the State was mediated by land in a negative way – their characterisation as ‘primitive’ and ‘uncivilised’ related to what the coloniser determined to be the absence of a ‘proper’ relationship with land. According to the common law, First Nations peoples’ relationship with land left it spatially vacant (terra nullius), without land law (the doctrine of desert and uncultivated), and by implication, without a sovereign. As David T Goldberg points out, terra nullius rationalised the English conquest of space and further, that conquering space is implicated in and implies ruling people.

Given that land has traditionally served to mediate relations between between the State and an individual, and given the common law’s refusal to admit Indigneous Laws and their derivation from the land itself, I suggest that the corollary under the common law was that no Aboriginal person could hold allegiance other than to the Crown. Without access to recognition of their lands before the courts of the conqueror (a term referred to in Johnson v McIntosh), First Nations peoples held no means by which to present an alternative account of allegiance, or alienage to that of the common law itself.

Instead, despite longstanding ambiguity about the status of Aboriginal peoples before the law, Indigenous Australians became British subjects, deemed to owe ‘natural’ allegiance to the State by virtue of their birth within the Crown’s dominions. Consequently, Aboriginal Australians (born in Australia) were not aliens under the law.

The consequences of native title for alienage

The decision in Mabo, in 1992, altered the framework of land law, and the doctrine of tenure, in Australia. The Court felt constrained to persevere with the doctrine of tenure. However, it found that although the State was sovereign over the territory of Australia, this was a different proposition from ownership of all the land. It found that from colonisation, the State had what it called ‘radical’ title – a right as the sovereign to reclaim land titles – while the First Nations peoples continued to hold beneficial title until it was extinguished. This beneficial title – underlying ownership of land based on Aboriginal and Torres Strait Islander Law – would be recognised by the courts as native title.

Post-Mabo, the State continues its role in managing relations though land – including for traditional owners. The Native Title Act superinduces State processes over common law native title to manage claims to land, and it is the State’s courts that are appointed as the arbiter of native title itself. Nonetheless, the law recognises that land – country – is central to the identity and spirituality of Aboriginal and Torres Strait Islander Australians, and that save for circumstances of extinguishment, title to estates predating colonisation subsist.

In my view, Indigenous Australians’ title to land has implications for alienage.

Now, Indigenous Australians have recognised rights to land which can mediate relations with the State in a positive way. Through land, First Nations peoples can proclaim before the common law that according to their own Law they are the people of this place. Feudal law may not have anticipated such an eventuality, but it is open to the law to comprehend the connection between land and allegiance – where land is no longer a means simply of performing allegiance, but is instead its source.

Now, there is a means of understanding that Aboriginal and Torres Strait Islander Australians might hold allegiance to land itself.

For Aboriginal and Torres Strait Islander Australians born in Australia, the laws of alienage that impute allegiance would no doubt continue to apply. But for those born overseas and who are not naturalised, the requisite connection with the State can be mediated still through land: through their connection to country under Law. Whether or not native title subsists, connection to country can remain regardless and support a non-alien status.

My final observation is that as native title interests are communal interests and are not derived from State grant, it is difficult to see how the State could deny that property right to a single native title holder who is born overseas (such as has occurred in the Love case). The very nature of the right is that it is inalienable, and subsists according to the Law of the traditional owners. This will inherently deny the State one of the hallmarks of alienage: circumscribed rights including regulation or confiscation of property.

Conclusion

The common law has used land to mediate the relationship between individuals and the State for centuries. The very system of land law involves a grant from the state to a person: originally with the obligation of performing acts of homage and fealty, but more recently through payment and other State regulation.

While land title has been available to non-Indigenous Australians since colonisation, it is only since Mabo that Indigenous claims to land have been recognised. Before Mabo, it was the absence of Indigenous land title that was a feature of their exclusion from the broader polity despite the attributed allegiance from birth.

The implication of native title however, is the recognition of Indigenous title to land according to traditional Law. The common law is now faced with the option to accept that relationship with land as a feature of the law of alienage.

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