out of the question." Supposing, then, Earl Bertram was tenant in tail under the settlement of 1718, still he was not within the 8th section of the 6 G. 1, c. 29,-that provision being contingent upon the persons entitled to the estates being, when the estates fell to them, disabled by the public law: he, not being enabled by the 6 G. 1, was not restrained by it.

3. The next point is, "that, regard being had to the state of the law affecting Roman Catholics at the time of the passing of the 6 G. 1, c. 29, and to the acts affecting Roman Catholics passed subsequently to that statute, Bertram Arthur Earl of Shrewsbury was not restrained by the 8th section of that act from executing a disentailing assurance, and *130] thereby acquiring an *estate in fee simple absolute; and this whether his estate was acquired in one of the several ways above mentioned or otherwise, and whether he was or was not within the terms of that section." Assuming, as the plaintiff asserts, that no heir male of the body of any son of George Talbot could after the passing of the 6 G. 1, c. 29, disentail his estates without taking the oath and subscribing the declaration mentioned in the proviso to the 8th section,-the policy and the letter of the law have been so altered by the statutes since passed to relieve Roman Catholics from the penalties and oppressions under which they laboured at that time, that that disability has been entirely removed. [The learned Serjeant here referred to and commented upon the 3 Jac. 1, c. 5, 30 Car. 2, stat. 2, c. 1, 1 W. & M. c. 8, 1 W. & M. c. 9, 11 & 12 W. 3, c. 4, 1 G. 1, c. 12, and 1 G. 1, c. 55. Now, the 6 G. 1, c. 29, although in part a private act, is in part also a public act. It dealt with matters of the highest public concern. It established an exception, in favour of the members of a powerful popish family, out of the provisions of the 11 & 12 W. 3, c. 4, giving them a capacity to hold and enjoy what no other papists could hold or enjoy. The 18 G. 3, c. 60, relieved Roman Catholics from certain of the penalties and disabilities imposed on them by the 11 & 12 W. 3, c. 4,-amongst others, from the disability to inherit or take by descent, devise, or limitation in possession, reversion, or remainder, any lands,' &c.; and substituted a new oath of supremacy for that provided by the 1 Eliz. c. 1. Further relief was afforded to Roman Catholics by the 31 G. 3, c. 32, and the 43 G. 3, c. 20. Then came the Roman Catholic Emancipation Act, 10 G. 4, c. 7, by the 1st section of which it is enacted that it shall not be necessary to take the declaration against transubstantiation as a qualification for the exercise and enjoyment by any of *131] Her Majesty's subjects of any *civil right; and by s. 23, that no oath shall be tendered or required to be taken by his Majesty's subjects professing the Roman Catholic religion, for enabling them to hold or enjoy any real or personal property, other than such as may be by law tendered to and required to be taken by His Majesty's other subjects. Some doubts having been suggested as to whether that statute wholly repealed the 11 & 12 W. 3, c. 4, those doubts were set at rest by the 9 & 10 Vict. c. 59. [COCKBURN, C. J.-Your contention is, that a Roman Catholic under disability by the virtue of the 11 & 12 W. 3, c. 4, could always, by taking the necessary oath and making the necessary declaration, relieve himself from that disability; and that, before the execution by Bertram Arthur of the disentailing deed, the possibility of doing that whereby he might have relieved himself from all disability

had ceased.] And the necessity also. In a word, the 6 G. 1, c. 29, was an exception of the Talbot family out of the 11 & 12 W. 3, c. 4; and, that statute being wholly repealed, the exception went with it, and all the restraints attached to the exception. It will be insisted, on the other side, that the effect of the repeal by the 32d section of the Shrewsbury Estate Act, 6 & 7 Vict. c. 28, of the proviso in the 8th section of the 6 G. 1, c. 29 (antè, p. 80), was, to restore the disability created by the 11 & 12 W. 3, c. 4. But, the disability being once gone by force of the 10 G. 4, c. 7, it was gone for ever, and could not be revived in this way. [WILLIAMS,J.-At the time of the passing of the 6 G. 1, c. 29, I do not find that there was any general enactment disabling papists from aliening their lands.] It was at that time a grave question whether the 11 & 12 W. 3, c. 4, had that effect: the subject was under discussion in Ratcliffe's Case, 1 Stra. 267, 9 Mod. 172. It arose out of the attainder of the Earl of *Derwentwater. That unfortu

nate nobleman was tenant in tail under the marriage settlement of [*132

his father; and, being a papist, and before he committed high treason, he disentailed the settled estate: and, upon his conviction and execution for high treason, a question arose before the commissioners of forfeited estates, whether Lord Derwentwater, being a papist, was not disabled by the 11 & 12 W. 3, c. 4, from disentailing his estate. If he was so disabled, then the estate was forfeited under the then recent statute of treasons, 1 G. 1, c. 50, which, in the case of a tenant in tail, created a forfeiture not only of the estate tail, but also of the fee. If, on the other hand, it was competent to him, notwithstanding the 11 & 12 W. 3, to disentail the estate, then his son, Mr. Ratcliffe, took a vested estate tail. The commissioners (whilst the 6 G. 1, c. 29 was in progress) finally decided that Lord Derwentwater was incapable of disentailing, and consequently that the whole estate was forfeited. But afterwards it was decided, on appeal to the judges, that the converting of an estate tail into a fee simple absolute was not a "purchase" within the 11 & 12 W. 3, c. 4, that it was not a new estate acquired by the earl, and consequently that the disentailing deed was valid. [COCKBURN, C. J.The 11 & 12 W. 3, c. 4, is, as you observe, a strangely drawn act: it provides that a person not taking the oaths and making the declaration required shall be incapable of inheriting or taking by descent, &c.; it does not, however, provide that the estate shall go to anybody else, but simply that the next of kin may enjoy. Suppose the next of kin to be a man of high and generous principle, and to decline to take advantage of his position?] It is to that high and generous principle that the Roman Catholics of that day owed the enjoyment of their estates,— there being few instances upon record of the Protestant next of kin taking advantage of this oppressive law.

*4. The next point is, "that Earl Gilbert was, at the death [*133 of the Duke and Earl of Shrewsbury in 1717, incapable of taking, or, if capable of taking, was at the date of the settlement of 1718, and also at the time of the passing of the 6 G. 1, c. 29, incapable of making a valid conveyance or settlement of the reversion in fee expectant on the failure of the limitations under which an estate tail became vested in Bertram Arthur Earl of Shrewsbury, and therefore that such reversion was not by the statute 6 G. 1, c. 29, effectually limited to the use of the person and persons being issue male of John first Earl of Shrewsbury,

to whom the earldom of Shrewsbury should descend and come, as in auch statute mentioned. The remainder under which the plaintiff claims was not well created, because the reversion out of which it was carved had no legal existence. The 6 G. 1, c. 29, though, as regards some of its provisions, a public act, is, so far as it relates to the Talbot family and their estates, a private act, and as such must be construed as any other private conveyance. The recitals show what the intention of the promoters of the act was. That the reversion was not in Earl Gilbert, or, if it was in him, that he was incapable of dealing with it, is clear when the statute 1 Jac. 1, c. 4,(a) and the evidence respecting Earl Gilbert, are looked at.

*The learned Serjeant then proceeded to urge that the docu*134] ments offered in evidence on the part of the defendants (referred to, antè, p. 31) were admissible, for the purpose of elucidating the meaning of the 6 G. 1, c. 29, and showing which of the two inconsistent constructions of which that act was susceptible ought to be adopted, and also for the purpose of showing that Earl Gilbert was a Jesuit priest and so subject to the pains and penalties of the 1 Jac. 1, c. 4, s. 6. But the course which the case ultimately took renders it unnecessary more particularly to notice this part of the argument.

Cause was shown against this rule in Trinity Term, by the AttorneyGeneral (Sir Fitzroy Kelly), Rolt, Q. C., Manisty, Q. C., Ellis, and Hannen: and Shee, Serjt., Sir Richard Bethell, C. Hall, Badeley, and Archibald, were heard in support of it.

The following is a short, and necessarily very imperfect, summary of the points urged on the one side and on the other, and the statutes and authorities referred to.

Argument for the plaintiff. The estates in question are inseparably *135] annexed to the earldom of Shrewsbury by the 6 G. 1, c. 29; and the plaintiff, having by the judgment of the House of Peers succeeded to the title, became entitled to the estates. The grounds upon which it is sought to impeach his right are in substance three,-first, that Earl Bertram Arthur (the late earl) was seised of an estate tail, not under, but by a title paramount to, and independent of, the 6 G. 1, c. 29, and so not bound by the clause (s. 8) against alienation, and therefore entitled to disentail,-secondly, that, regard being had to the state of the laws affecting Roman Catholics at the time of the passing of that act, and to the acts subsequently passed for their relief, even supposing Earl Bertram Arthur to have been within the operation of the 6 G. 1,

(a) The 6th section of which enacts "that all and every person and persons under the King's obedience, which at any time after the end of this session of parliament shall pass or go, or shall send or cause to be sent any child or other person under his or any of their government, into any of the parts beyond the seas out of the King's obedience, to the intent to enter into or to be resident in any college, seminary, or house of Jesuit priests, or any other popish order, profession, or calling whatsoever, or repair in or to any the same to be instructed, persuaded, or strengthened in the popish religion, or in any sort to profess the same, every such person sa sending or causing to be sent any child or other person beyond the seas to any such purport or intent, shall for every such offence forfeit to his Majesty, his heirs and successors, the sum of 1002.; and every such person so passing or being sent beyond the seas to any such intent or purpose as is aforesaid, shall, by authority of this present act, as in respect of him or herself only, and not to or in respect of any of his heirs or posterity, be disabled and made incapable to inherit, purchase, take, have, or enjoy, any manors, lands, tenements, annuities, profits, commodities, hereditaments, goods, chattels, debts, duties, legacies, or sums of money within this realm of England, or any other his Majesty's dominions."

c. 29, s. 8, the prohibition against alienation therein contained is repealed and abrogated, thirdly, that Earl Gilbert, who was a party to the settlement of 1718, which that act confirmed, had, by reason of the then-existing law against papists, no estate in reversion out of which the remainder under which the plaintiff claims was carved, and so the limitation to the heirs male of the first Earl of Shrewsbury was inoperative.

The legal effect of the statutes in existence with reference to Roman Catholics at the date of the settlement of 1718, and of the statute 6 G. 1, c. 29, was, not to restrain them from alienating the inheritance, but merely to prevent them from enjoying estates which might devolve upon them by descent or become theirs by purchase, unless or until they should have taken certain oaths and made and subscribed certain declarations required by those statutes. That this is so, is clear from the cases of Thornby v. Fleetwood, 1 Stra. 318, and Ratcliffe's Case, 1 Stra. 267, 9 Mod. 172. George, the first taker under the settlement of 1700, being of mature age at the time of the death of the duke, and being a Roman Catholic, and having only an estate for life, the first tenancy under the settlement could not take effect at all. The settlement [*136 of 1718, and the act of 6 G. 1, c. 29, to which all the then-existing members of this family were assenting parties, substantially repeated the settlement of 1700. The main question is, whether that act was ab initio inoperative and void, or is now repealed. Assuming it to be a subsisting act, it conclusively shows that Bertram Arthur, the late earl, did hold these estates under the parliamentary title thereby created, and not merely under the settlement of 1700: the act recites the two settlements and the will of the Duke of Shrewsbury; and it expressly and in terms ratifies and confirms the settlement of 1718, "and all and every the uses, trusts, and estates therein mentioned, limited, and declared," amongst others, the limitation to the heirs male of the body of George Talbot, who took the first estate for life: it therefore expressly comprises Earl Bertram Arthur, who took the estates as heir male of the body of George Talbot. It enables all the heirs male of the body of George Talbot to take, hold, and enjoy the said lands, &c., according to the true intent and meaning of the settlement, "any law or statute to the contrary notwithstanding,"-that is, notwithstanding the operation. of the penal laws under which, if Roman Catholics, they might otherwise have been deprived at least of the use and enjoyment of these estates during their lives. And this is confirmed by the language of the 12th section. The 2d section, under which the plaintiff claims, is clear and express in its terms: it enacts, that, after the decease of George Talbot and John Talbot, and failure of issue male of their respective bodies, Gilbert being deceased, and having no issue, the estates shall be "to the use and behoof of all and every the person and persons being issue male of John first Earl of Shrewsbury to whom the title should after the decease of Gilbert, George, and [*137 John, without issue male of their respective bodies, by virtue of the letters patent of creation descend and come, severally and successively, as they shall succeed to and inherit the said earldom, and of the several and respective heirs male of the body and bodies of all and every such person and persons issuing, to attend and wait upon the said earldom, and to be annexed to and descend with the same.' The intent and policy of the act was, to secure to the Roman Catholic earls of VOL. VI., C. B. (N. s.)—7

this family the enjoyment of these estates, notwithstanding the possible operation of the penal laws in force against those professing that faith: but it was also to annex (for the benefit alike of Protestant and of Roman Catholic) the estates inalienably to the earldom; which object could not be effected without an express clause restraining and prohibiting alienation. Accordingly, the 8th section (antè, p. 78) imposes an absolute restraint and incapacity to alien, in terms as clear as language can express. The proviso which follows in that section was repealed (by the 6 & 7 Vict. c. 28) at the date of the disentailing deed, but, for the purpose of this case, the act must be construed as it would have been construed at the time of its passing. The fallacy which pervades the whole argument for the defendants upon this part of the case, is, that this 8th section was intended to operate only in restraint of Roman Catholics. It obviously, however, was intended to deprive all who might succeed to the earldom, Protestants as well as Roman Catholics, of the power of alienating the estates, except upon the condition of their taking, or having taken, the oath, and made the declaration referred to, within six months of their attaining the age of eighteen, and continuing Protestants until twenty-one, and thence to the time of *138] alienation. The powers, too, to charge the estates *are altogether inconsistent and incompatible with an estate tail in any future tenant in tail under any earlier or paramount title.

1. Bertram Arthur, the late earl, then, was tenant in tail, not under the settlement of 1700, but under the settlement of 1718, and the 6 G. 1, c. 29. Upon any other supposition, the estates tail created by the two settlements are wholly different and inconsistent. Except so far as the provisions of the settlement of 1700 were entirely consistent with those of the settlement of 1718, the former is entirely defeated; and, even where the terms are identical, the estates thereby limited must be taken to be held under the later settlement and the act of parliament. As to five of the counties mentioned,-viz., Chester, Stafford, Oxford, Wilts, and Derby,-the settlement of 1700 gives no legal estates at all, except to the Bishop of Salisbury and his co-trustees, of whom the bishop was ultimately the survivor. The estate tail given to the infant son of George Talbot by the settlement of 1700 was general and uncontrolled by any qualification or condition; that given him by the settlement of 1718 and the statute 6 G. 1, c. 29, s. 1 (antè, pp. 17, 71), is limited to the first son of George "on the body of Mary Fitzwilliam lawfully begotten;" and it is accompanied by many benefits and safeguards against the penal acts affecting Roman Catholics, and subject also to many qualifications and conditions, amongst others to the restraint of the power of alienation already mentioned. Earl Gilbert, George Talbot, and John Talbot are expressly excepted out of the general saving clause (s. 15). Bertram Arthur was not a stranger: he was within the exception in the saving clause; and he was expressly bound by the act, and took under it an estate tail subject to all the qualifications and conditions imposed by s. 8. A private act "is as *139] powerful and effective, if duly and properly obtained, as a public one, in transferring the legal estate in lands from one person to another, and in binding all those who are intended to be bound by it, and whose rights are not saved:" see Cruise's Digest, Vol. 5, p. 2, § 29, title" Private Act." That Earl Bertram dealt with the estates