case John Thornby plaintiff thomas Fleetwood and other defendant in error that  February a tenant in tail educate in a popish seminary be capable of suffer a  common recovery judgement of the court of common plea affirm Mod viner vol p  can note to can vol p can vol p can note to can vol p note to can Com stram  lill Ent Mod the plaintiff bring a ejectment against the defendant for diverse  land and tenement in the county of staff ord and in Hilary term on a trial at  bar in the court of common plea a special verdict be find by which it appear  that Charles Lord Gerrard be seize in fee of the premise in question on his  marriage with the lady jane Digby make a settlement of they date the that and  that of November to the use of himself for life then as to part to the lady  for life remainder as to the whole to the first and other son of that marriage  successive in tail male remainder to the heir male of the body of Lord Charles  remainder to the heir male of the body of Thomas the first Lord Gerrard his  great grandfather remainder to his own right heirs That Lord Charles and his  lady leave issue Lord Digby their only son who die in sans issue male leave  Elizabeth duchess of Hamilton the lessor of the plaintiff his only daughter  and heir at law That Thomas the first Lord Gerrard have issue two son Gilbert  the grandfather of Lord Charles the settlor and John who have issue Richard  which Richard have issue four son namely Charles hereafter distinguish by the  name of the second Lord Charles brown William Philip and Joseph and one  daughter Frances marry to the defendant Thomas Fleetwood That John and Richard  his son die before Lord Digby that the second Lord Charles Lord William and  Lord Philip the son of Richard be send out of England to be educate in a  popish seminary at saint omer where they reside several year and be breed up  in the popish religion that upon the death of Lord Digby the second Lord  Charles return to England claim to be next heir male and during the infancy of  the duchess suffer two common recovery of the premise and declare the use  thereof to himself in fee he then make a settlement thereof on his marriage  and afterward die a papist without male issue That William and Joseph his  brother die in his lifetime without issue that Philip his other brother be  live but be a profess papist and that one Roger Owen be his near protestant  relation brown er p upon argue this verdict in the court of common plea the  defendant obtain judgement but on a writ of error in the court of king bench  the judge be equal divide in opinion the Lord chief justice and Mr justice  fortescue be of opinion that the judgement below be erroneous and ought to be  reverse Mr justice powis and Mr justice Eyre be of the contrary opinion and  therefore upon the request of the plaintiff counsel the court be please to  affirm the judgement in order to expedite the determination of the matter in  the house of lord upon the present writ of error and in the rule for judgement  that be declare to be the reason of their affirmance the counsel for the  plaintiff p York t reeve say the only question upon this verdict be whether  any title can be find for her grace the duchess of Hamilton under the  settlement of the first Lord Charles to who she be granddaughter and heir and  also heirgeneral of her family and in argue this question they insist that it  be evident beyond all contradiction that the duchess be right heir of the  first Lord Charles and will be entitle by virtue of the limitation in the  settlement to his right heir and that nothing can stand in the way of this  limitation if none can take as heir male of the body of Thomas the first Lord  Gerrard the former limitation be all spend that there be none who can pretend  so to take unless the second Lord Charles who suffer there coveries or Philip  who be live at the time of the verdict but it be find by the jury that both of  they in the lifetime of Lord Digby be send out of England with a intent to be  educate in a foreign popish seminary where they reside for several year and  always continue in the profession of the popish religion that by the statute  saint James I c it be enact that all and every person and person under thet  king obedience which shall pass or go beyond the sea to the intent to enter  into or be resident in any college seminary or house of jesuits priest or any  other popish order profession or call whatsoever or repair in or to the same  to be instruct persuade or brown strengthen in the popish religion or in any  sort to profess the same shall by authority of the say act as in respect of he  or herself only and not to or in respect of any of his heir or posterity be  disable and make incapable to inherit purchase take have or enjoy any manor  land tenement annuity profit commodity hereditament good chattel debt duty  legacy or sum of money within the realm of England or any other of his majesty  dominion and that all and singular eistatels term and other interest  whatsoever to be make suffer or do to or for the use of any such person or  person or upon any trust or confidence inediately or immediate to or for the  benefit or relief of any such person or person shall be utter void and of none  effect to all intent construction and purpose that the intent of this act be  plain to discourage and prevent a foreign education in the popish religion a  religion which teach all its proselyte obedience to a foreign power but those  who receive their instruction in it in foreign seminary from the discipline of  jesuits general return with principle more averse to civil government than  other of the same profession and more pernicious and destructive to the  monarchy establish and the peace and welfare of their native country the  penalty think necessary therefore for prevent so great inconvenience be that  the person who go abroad for such evil purpose shall be capable of no estate  at his return whereby he will have less ability of do mischief that the word  be express he shall be disable and make incapable to inherit purchase take  have or enjoy any manor land etcetera within this realm and the consequence be  manifest that if the second Lord Charles and Philip his brother can not take  then the recovery suffer by Charles must be void and the estate can never vest  in Philip and no person be capable to take have or enjoy under the limitation  to the heir male of the body of Thomas Lord Gerrard the estate must devolve to  the duchess as right heir of Lord Charles the settlor the plaintiff counsel  then proceed to state for the purpose of answer some objection make on thet  part of the defendant as saint that the statute do not induce any absolute  disability to take the estate for it be say he shall in respect of himself  only and not in respect of any of his heir or his posterity be disable to  inherit purchase take or enjoy etcetera and it contain a clause that on his  conformity to the church of England he shall be discharge from such disability  brown er p from whence it follow that the estate must vest in the ancestor in  order to transmit the same to his heir or posterity and that the offender  against the act shall only forfeit the profit of the estate until conformity  dly that a contrary construction of the statute will not answer all case which  may happen for a estate may be vest before the offence commit and then the  party can only be disable to have and enjoy and that the penalty shall be  uniform in relation to all offence against the act dly that the act brown be  silent how or to who the estate shall go if the offender can not take it it  must go as in other case of forfeiture tot the crown thly that the statute car  I c have ascertain this matter by give the forfeiture of the estate upon  conviction to the crown whereby the statute of I James be alter or at least in  this respect explain thly that during the life of Philip the estate tail must  have continuance and till the determination of it the limitation to the  duchess can not take place thly that several act of pardon have pardon the  offence of Philip and thly that protestant purchaser may suff er by reason of  the disability inflict on person send abroad to be educate in the popish  religion if the act James I shall be construe to prevent any estate from vest  in such offender to the first of these objection it be answer that the  construction thereby contend for elude the act and render it vain and of no  force for if the estate shall vest in the offender and the profit only be  forfeit it will be easy for he whenever any attempt shall be make to take  advantage of the forfeiture to convey away the estate and thereby render any  such attempt ineffectual beside it seem very extraordinary to say that a  disability to inherit purchase take have or enjoy shall signify no more than  the word enjoy alone will signify nor be it probable that the legislature will  use so many word of know and remarkable force and import in the law if they  intend nothing by they that the same parliament in their next session use very  different expression where they mean to deprive the party only of the profit  of the estate for in the statute of James c which inflict a penalty on child  go or be send beyond sea without licence of lose the profit of their estate  till conformity the word be that such child or child shall take no benefit by  any gift conveyance descent devise or otherwise of any land etcetera until  they taker the oath therein prescribe and that in the mean time the next of  kin not be a recusant shall have and enjoy such land etcetera till conformity  and then account for and restore to the party conform the profit so receive  therefore it can not well be conceive but that something more be intend when  the legislature enact that the offender shall be disable and make incapable to  inherit purchase or take as well as to have benefit of or enjoy etcetera and  that upon conformity the party offend shall be free and discharge from all  disability and incapacity without any mention at all of the profit throughout  the whole act and though the disability be personal only in respect of the  offender and not of his posterity it do not follow but that the estate may  cease in respect of one and revive in respect of another by force of a act of  parliament when the rule of law will admit as great variation or change of  estate to answer the exigence and justice of the case or the convenience brown  of the party as in the case of a posthumous heir movable inheritance partition  exchange or the like To the second objection it be answer that it will be a  harsh exposition to say that the word which make the off endear incapable to  inherit purchase or take shall be reject or make useless in all case because  some case may happen wherein they can not take effect it be probable that in  most case the offence will be commit before the estate vest but if in some  case it shall happen otherwise the most natural construction be that the word  have and enjoy be add for that reason that all case may be comprise that the  offender shall be disable to inherit purchase or take when the inheritance or  estate be not yet vest and where it be that he shall be disable to have or  enjoy by this construction all the word of the act will have their force but  by the other the word inherit purchase take be useless and insignificant and  must be rejected To the three objection it be answer that when a act of  parliament punish a offence by forfeiture of estate or sum of money without  say who shall have the penalty it be but reasonable that the king as head of  the state shall punish brown er p the offence and take advantage of the  forfeiture but there be great difference between a forfeiture and a disability  for where the offender be disable from take the estate he can not forfeit what  he have not and in such case the estate will of course devolve to the next  person who be capable to take it in the same manner as if the person disable  be not in be and that it be a constant and know rule of law that where a man  die leave his wife privement ensient with a son the next heir or next in  remainder shall take till the son be barn and if the next heir be a alien monk  profess or otherwise incapable to take the estate shall go over to the next  that be capable of take to the four objection it be answer that the statute of  car I c do not intend to alter or repeal the statute of James I for it begin  with direct that both shall be put in execution and upon compare both law  together they appear very consistent the statute James I extend to such person  as go with a intent to be educate in a foreign popish seminary whereas the  statute of car I extend only to such as go and be there instruct and likewise  carry the prohibition to a foreign education in any private popish family to  which the former law do not extend that this latter statute inflict a heavy  punishment to discourage offence of this pernicious consequence to the public  by subject the person send as well as the person go abroad for the evil  purpose before mention to the forfeiture of all his land and good and disable  he to sue be guardian excutor or administrator or to have any legacy deed of  gift or office and if it shall be admit that by force of the word have and  enjoy in the former statute brown the offender be disable from take the profit  of the land actual vest before the offence commit then the latter statute  provide a further penalty by enact a forfeiture of the estate during his life  to the five objection it be answer that Philip be a person who have such  foreign education as be prohibit by the statute of James I if he be thereby  disable to take the estate will go over to those next capable of take it in  the same manner as if Philip be not in be to the six objection it be answer  that though it deserve very little regard yet if it shall happen that any act  of pardon extend to Philip offence which do not appear yet it be not so much  as pretend that in such act of pardon there be any word of restitution which  will be necessary to re instate he in the estate that be before vest in  another for want of his ability to take it and to the last objection it be  answer that the mischief suppose by it be sufficient provide against by the  act Geo I c which enact that no sale to any protestant purchaser shall be  avoid or impeach by reason of any of the disability inflict by the say act and  incur by any person make or join in such sale unless before such sale the  person entitle to take advantage of the disability shall have actual recover  the land or give notice of his claim to the purchaser or enter his claim at  the quarter session for the county and good fide pursue his remedy in a court  of justice it be therefore pray that the say judgement may be reverse and  judgement give for the plaintiff on the other hand the defendant counsel r  Raymond t Lutwyche argue the three follow point videlicet saint whether any  and what estate be vest in the second Lord Charles by the construction of the  statute of James I d whether any and what alteration of that statute be make  by the subsequent statute of James I and car I d what effect the life of  Philip will have upon the title of the lessor of the plaintiff as to the first  point it be insist that immediate after the disable clause in that act follow  a proviso that if any person or child so pass send send or then be beyond the  sea shall become conformable and obedient to the law and ordinance of the  church of England every such person or child during such conformity shall be  free and discharge from all and every such disability and incapacity that this  be the only act rely upon by the plaintiff and the construction contend for be  that the second Lord Charles be thereby so far disable to take the estate tail  by descent that the recovery suffer by he be void and that the same disability  be still upon Philip and there be no person in be who can brown er p take the  estate tail the plaintiff s lessor must be entitle to take as if the estate  tail be actual spend but there be no express word or even brown apparent  intention in the act to support this construction on the contrary the most  material word of the act be altogether drop videlicet that the offender shall  be disable as in respect of himself only and not to or in respect of any of  his heir or posterity which word go through the whole clause qualify and  restrain the disability that the intention of the act do not extend the  penalty beyond the person offend nor beyond the time of his disavow his  principle and conform to the church of England but only to punish the offender  so long as he shall continue obstinate without prejudice to his innocent  posterity and a uniform construction in all case to answer these end seem most  agreeable to the word and intention of this law that before this act be make  such person as be mention therein have ability to inherit or purchase to take  and enjoy estate in land both for the benefit of themselves and posterity and  therefore so much of that ability as be not take away by this act remain in  they as it do before and how much that be the very word of the act plain  declare by disable offender to inherit purchase take have or enjoy as in  respect of themselves only but not in respect of any of their heir or  posterity so that in some respect the act have not take away but preserve the  ability to inheirit etcetera to say otherwise will be to contradict the very  word of the act and it will be absurd to call that a construction of they that  though the act have preserve in the offender a ability to inherit etcetera for  the benefit of posterity so that the estate in the land must be in he for that  purpose yet he be disable to inherit for his own benefit the end of which  disability be sufficient answer by the loss of the profit of the estate which  be design by the act that though the act have make no particular application  of the profit during the disability yet as this be a penalty inflict for a  public offence the king may be entitle to the penalty in the same manner as in  all other case where penalty be give by act of parliament for public offence  without any particular application of they that by this construction the  offender will have ability to take and hold for the benefit of his posterity  in all the instance of the act but for the benefit of himself in none whereas  to create in he a total disability in the case of a inheritance it will be  difficult to know when or in what manner the heir shall take or claim shall he  take in the lifetime of the ancestor that will be repugnant to the rule of law  for no man can be the heir of a person live and the rule of law be always the  sure guide in the construction of a act of parliament where the act have not  express give a contrary direction if there be a son under no disability it  will be very extraordinary without express word but mere by construction to  carry the estate over his head for the benefit of a remainderman who be never  intend by the original grant to take as long as there be any issue male of a  prior tenant in tail and as it be difficult to know by the plaintiff  construction when the heir be to take so it be as difficult to know in what  brown manner he be to entitle himself in order to recover the estate since the  act of parliament have prescribe no method but leave the heir to do it as he  can by the rule of law and it be the know rule of law that no heir can entitle  himself but only through such ancestor as be inheritable for if there be any  stop in a ancestor occasion either by corruption of blood estoppel or any  other mean all the posterity derive descent under such ancestor be bar for  ever that the next disability in the act relate to purchaser in which case it  be impossible the heir can ever take unless something vest in the ancestor but  however it may be in these two instance yet it have be admit by the plaintiff  that in the case of land vest in the offender before the offence commit the  estate must remain in he nay it have be admit in argument on that part of the  question that the act do not extend to that case though the word as much  disable the offender to have and enjoy as to inherit or purchase but the  foundation of such distinction be not easy discoverable for it be equal  dangerous and inconvenient to the public to permit a offender to enjoy any  estate in land whether it be vest in he before the disability incur or whether  it come to he afterward by descent or purchase and therefore it seem most  natural to guard against all these instance in one and the same manner and  which can only be do by the construction contend for by the defendant by which  construction it will rest in his majesty brown er p as have the care of the  public peace and safety to put the law in execution at his discretion that the  proviso seem intend as a encouragement both to the offender to conform and  also to prevent any mischief which may happen to child of tender year send  abroad by the authority of a parent or guardian for their be send and go be  one of the offence within the act and it will be hard that a person send  perhaps against his will or when not of age to judge for himself shall suffer  so great a loss without any hope of redress although when he become of ripe  judgement he shall entire disapprove the fact which by force he have be oblige  to commit and yet a infant under these circumstance must for ever lose any  estate that may descend to he during the disability if the plaintiff  construction shall prevail that the present case on behalf of the plaintiff be  compare to the case of a monk but be not at all like it for the disability in  the cage of a monk or person profess be ground on the maxim that in time of  popery a monk be civil dead but it can not be say that a person disable by  this act be to be take as dead in law for it be not a absolute disability but  only a temporary one during non conformity and if he be to be consider as a  dead person he can not purchase for the benefit of his heir which the act  allow as to the second point it be say that the word of the act James I be to  this purpose videlicet that if the child of any brown subject not be soldier  mariner merchant etcetera to prevent their good education in England shall be  send or go beyond the sea without licence every such child or child so send  shall take no benefit by any gift conveyance descent devise or otherwise of or  to any land tenement hereditament lease good or chattel and the next of be or  her kin which shall be no popish recusant shall have or enjoy the say land  etcetera till such time as the person so send shall conform and the person so  send shall forfeit pound that the plaintiff in error only endeavour to show  that the act of I James I be not repeal or any way alter by this act of James  I but do not insist nor be there any foundation to insist that this latter act  will give any title to the plaintiff for the pernancy of the profit be thereby  give to he next of kin that be no popish recusant and that can not be the  plaintiff case because the verdict have find Roger Owen to be the next  protestant relation in the next place it be to be consider how the case stand  on the act of car I which after recite that at diverse person have send their  child into foreign part notwithstanding the statute I James I enact that the  say statute shall be put in due execution and further that if any person under  the king obedience shall at any time after the end of that session of  parliament pass or go or convey or send or cause to be send or convey any  child out of the king dominion into any part beyond the sea out of the king  obedience with intent and purpose to enter into or be resident or train up in  any popish college or school and shall be there instruct in the popish  religion or in any sort to profess the same or shall convey or send or cause  to be convey or send any money or other thing for or towards the maintenance  of such child every person so send and every person pass or be send be thereof  lawful convict upon any information presentment or indictment shall be disable  from thenceforth to sue or use any action etcetera and shall forfeit all his  land during his natural life then follow a proviso that upon conformity he  shall have his land restore to he again that though this act have not repeal  the act of I James yet it appear both from the title the preamble and the body  of it that as the act of I James be not effectual to answer all the end  propose by it this act be make to explain amend and enforce it as to all  subsequent offence and so it real do in several particular for the act I James  I be silent how the penalty of that act be to arise but this act have express  provide that it shall be upon conviction and make a forfeiture for life and a  restitution in case of conformity in which the former act be silent so that if  the former act be to be put in execution under the explanation of car I there  be no conviction in the case the lessor can have no title but the land on  conviction will be express forfeit for life which must be to the king and  brown therefore it be apprehend that the direction for put the act of I James  I into due execution can relate only to those offence that be precedent to the  act of car I and as to the three point it be argue that unless it appear from  the case brown er p that there be a good title in the duchess to the present  possession of the land in question the plaintiff can not recover whether the  defendant have any title or not and this be apprehend to be so plain that it  can not be controvert the plaintiff be to recover on the strength of his own  title and not by the weakness of the defendant it seem very strange and  repugnant to all the rule of law that there be a estate tail create to all the  heir of the body of Thomas the first Lord Gerrard the duchess shall claim by  virtue of the remainder to the right heir of Charles Lord Gerrard the settlor  while that estate tail have a continuance her remainder be to take on the  death of Lord Thomas and all his issue male and it seem much more difficult  for her to take under a act of parliament which give nothing to her but  preserve express the right of the offender posterity by the very clause that  lie the disability on the ancestor and though there be a personal disability  in Philip yet it be but personal and the estate tail must continue in he for  the benefit of the issue if he have issue bear nobody can pretend that the  duchess can enter and though he have not he may have issue that the offence  find in Lord Philip be in pass and go to saint omer which be in the year and  if a pardon be necessary to remove any disability which he may thereby incur  after that time several general act of pardon be pass even before the death of  the second Lord Charles videlicet will and mary sess c and and will III c  whereby all offence be pardon that the pass to saint omer be a offence appear  from the very act I James I which create it and consequent it come within the  express word of the general pardon and if the offence be pardon it not be  exclude by any exception all the dependency penalty and disability incident to  it be go in consequence of that pardon that beside the point on the  construction of the statute and the general act of pardon it be observable  that the second Lord Charles be in the peaceable possession of the estate in  question twenty eight year and exercise all act of ownership such as make a  settlement upon his marriage and sell and lease of diverse part of the estate  to several of the defendant and other innocent purchaser for valuable  consideration who will be defeat of their purchase and his lady who be still  live of her jointure shall the judgement be reverse which it be humble hope  can only be from a force construction of this statute in the first instance  and that for a offence commit in the infancy of the last Lord Charles in  obedience to his father fortyfour year ago and from a fact find after his  death whereof he be never convict that Lord Philip may brown conform or he may  marry and have issue male and yet in either case shall the construction of the  statute I James I be a total disability of Philip to take in all event as  contend for by the plaintiff there will be no remedy for the person conform or  his issue male afterward to recover the estate back from the duchess which be  repugnant to the express word of that statute as well as to the proviso in  case of conformity and without such hard construction to the total  disinherison of the heir and posterity against the very letter of the statute  which be express not to hurt the heir or posterity of the person so educate  nor even himself if he shall afterward conform the duchess can have no  pretence of title till the estate tail be spend which still subsist in the  person of Philip suppose no recovery have be suffer but as by the recovery  which have be suffer the remainder to the duchess be bar so the same be not to  the prejudice of the heir and posterity of the second Lord Charles who suffer  these recovery the use thereof be declare to himself and his heir but only to  the prejudice of the remainder to the duchess for the preservation whereof  there be no provision in the statute and therefore upon the whole matter it be  hope that the judgement give below for the defendant will be affirm accord  after hear counsel on this writ of error and the opinion of all the judge  except Mr baron page who be absent have be several deliver with their reason  at large it be order and adjudge that the say judgement give in the court of  common plea and the say judgement of affirmance in the court of king bench  shall be affirm and that the record shall be remit to the end execution may he  have thereupon as if no such writ of error have be bring into the house jour  vol p brown er p