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OUR NATIONAL ARCHITECTURE; § II.--The New Churches 168
The discussion of a recondite subject in a popular manner is our present intention. Particularly necessary is this to the consideration of a matter, which, in its abstruseness and intricacy, is alone equalled by its consequent removal far from the attainment, and indeed the investigation, of but a very few; when, vitally affecting the interests of the people at large, it demands at least a due consideration, and a general knowledge. Thus impressed, we shall endeavour to set forth some of the most material rules which govern the real property of this kingdom ; remarking, at the same time, with as much impartiality as possible, on the merits and faults of this system. And although, by possibility, we may, from their very nature, not succeed in making all the matters which will be involved herein at once so apparent to the minds of our readers as might be wished,-yet let them by no means be discouraged, for a slight degree of continued attention will, we are confident, render our information perfectly clear.
First, we assume as a matter of course, that the lecture on descents, so much after the manner of Mr. Editor Campbell, of poetic notoriety, has been read and duly digested. If this postulate be not granted,—close the book, and turn to our last number. In it you will be amply repaid for the additional labour it may cost.
In considering this subject, it will be proper to observe the distinction that prevails between the quantity of estate—the period or duration of the lands, tenements, or hereditaments, in the holding of the tenant;-and the quality of the estate, the nature, incidents, and quaAugust, 1828.
lifications of that interest, -as a condition, a tenancy in common, a joint-tenancy and the like;—and the nature or quality of the tenure -as freehold or copyhold.
Freehold tenure may be said to be, the holding of real property of free tenure; which, at this day, consists of all which is not copyhold. And it is particularly necessary to observe these distinctions above pointed out, as otherwise, when we come to consider the different quantities of estates, ambiguity would undoubtedly ensue. For, in many manors, a copyholder may be a tenant in fee-simple, in fee-tail, for life, by the curtesy, and in dower, all of which are properly freehold interests, or quantities of estate amounting to freehold ; yet in the sense or nature of the tenure, they cannot be called freeholds. And, although it is said, in some of the books," that these “interests” do not amount to freehold, upon this reason,—that the freehold of the whole manor abides in the lord, who hath granted out the use and occupation, but not the corporeal seisin, or true legal possession, of certain parcels thereof to his customary tenants at will (for all copyholds are held at the will of the lord, according to the custom of the manor), for which Littleton hath been quoted : Yet it is conceived that he is no authority for this; but that, on the contrary, this otherwise apparent contradiction (that a man hath an estate of inheritance, and yet hath no freehold interest) may be reconciled on the distinction we have before taken, by reference to the very section of Littleton, which has been quoted as a contrary authority. Littleton's words in Sect. 8., are these:-“And these tenants which hold, according to the custome of a lordship or mannor, albeit they have an estate of inheritance, according to the custome of the lordship or mannor, yet because they have no freehold by the course of the common law, they are called tenants by base tenure." And it is obser. vable, that the word here rendered - freehold," is in the original text “franktenement"; and franktenement or liberum tenementum is defined by Bretton," the possession of the soil by a freeman." Now, copyholders were originally villeins, persons no better than slaves, “They could not,” says Blackstone, “ leave their lord without his permission ; but if they ran away, or were purloined from him, might be claimed and recovered by action, like beasts or other chattels. They held indeed small portions of land, by way of sustaining themselves and families; but it was at the mere will of the lord, who might dispossess them whenever he pleased," &c.
It is quite clear, from what has been quoted, that such persons could not come under the desription of freemen ; and although, by the kindness and indulgence of successive lords of manors, these estates have been enjoyed by the tenants and their heirs, according to particular customs established in their respective districts,- yet, nevertheless, they are still held at the will of the lord, as is found expressed in the court rolls; notwithstanding that will may be now qualified and restricted, and, at this day, can only be exerted “ according to the custom of the manor."
On this authority, therefore, that copyholders were not originally freemen, and that they are not at this day freemen, further than the custom of the manor has made them such, we found the distinction