as if he took under the act of parliament of 6 G. 1, c. 29, is evident: for, under the settlement of 1700, he had no power to grant the lease of the 20th of June, 1840, which he appears to have done (antè, p. 4), professing to grant it in pursuance of the powers and authorities vested in him by the estate-act of 6 & 7 Vict. c. 28, and in which lease the subject-matter of the demise is said to be subject to the existing limitation of the 4th of March, 1718, and the statute 6 G. 1, c. 29.

2. There is nothing in any of the statutes whereby the rigour of the penal laws against Roman Catholics was relaxed,-18 G. 3, c. 60, 31 G. 3, c. 32, 43 G. 3, c. 30, and 10 G. 4, c. 7,-to relieve Earl Bertram Arthur from the disability as to alienation imposed by the 8th section of the 6 G. 1, c. 29, or from the conditions contained in the proviso. The general Emancipation Act, 10 G. 4, c. 7, has no reference whatever to the capacity or incapacity of Roman Catholics to hold or enjoy lands its object was merely to enable Roman Catholics to exercise certain civil rights without taking the old oaths: see M'Mahon v. Lennard, 6 House of Lords Cases 970. [COCKBURN, C. J.-It is a strange circumstance that you find a provision which is intended to apply exclusively to persons educated in the Roman Catholic religion, imported into this private act of parliament.] That does not alter the construction of the act. It is not because the legislature has by a subsequent act relieved the members of this family, along with all Her Majesty's Roman Catholic subjects, from the performance of one of the conditions upon which the power of alienation was to depend, that [*140 they are therefore to be relieved from the performance of the other. The 6 & 7 Vict. c. 28,-the 32d section of which expressly repeals the proviso in the 6 G. 1, c. 29, s. 8, but leaves the clause against alienation subsisting and unrepealed,-conclusively shows that the 10 G. 4, c. 7, was not intended to have the effect of repealing the condition in the 6 G. 1, c. 29, upon which alone a tenant in tail was to be permitted to alien the estates. But, assuming that, from the altered state of the law, the performance of the condition upon which alone a tenant in tail could alienate has become impossible,-whether by the act of God or the act of the legislature, the only consequence will be that the power to alienate cannot be exercised: Egerton v. Earl Brownlow, 4 House of Lords Cases 1, 120. All parties interested were represented before parliament when that act (6 & 7 Vict. c. 28) passed, and all took benefits under it. [COCKBURN, C. J.-The fact of Earl John having in 1843 obtained an act of parliament to sanction his dealing with the estates in a particular way, is not to be taken as a conclusive admission on his part that he could not have dealt with them by virtue of the operation of the 10 G. 4, c. 7, upon the 6 G. 1, c. 29. It might have been thought a safer course to obtain an act of parliament, than to rely upon that which might be subject to very great argument.] The legislature themselves by this act, which passed only fourteen years after the 10 G. 4, c. 7, expressly declare the law to be that Earl John held these estates under the 6 G. 1, c. 29, and subject to the provision in s. 8 restraining him from aliening except upon performance of the conditions therein specified. The act recites, in substance, that the estates were held by Earl John under the 6 G. 1, c. 29, that that act contained certain clauses, and amongst others this clause against

*alienation (which is set out in extenso, with the proviso in

*141] question), and that, by reason of that restrictive clause,-the

legal effect of which is declared to be, to operate an exception from the clause restrictive of alienation in favour of any taker of the settled estates who should within six months after he should attain the age of eighteen take the oaths and subscribe the declaration therein referred to, Earl John could not alienate without the authority of an act of parliament: and the act then proceeds to give that authority. It is no ; competent to this or any other tribunal to hold the legislature to have erred in this respect. [COCKBURN, C. J.-It must be borne in mind that this is not a declaratory enactment, but merely a recital in a private act of parliament, a recital of the supposed state of the law. If convinced that that recital is erroneous, may we not give effect to our conviction? Are we bound by the erroneous recital?] As between the parties to the act, at all events, it is submitted that the recital though erroneous is conclusive: and no authority to the contrary can be cited. [COCKBURN, C. J.-Have you any authority for your proposition?] An authority scarcely can be needed for the position that the legislature is not to be assumed to be ignorant of the law. But, be that as it may, if Earl John had the power which Earl Bertram Arthur has claimed to exercise, of disentailing this property, this act was altogether unnecessary. In the face of these recitals and of these enactments, it is impossible to say that the clause against alienation and the proviso in the 6 G. 1, c. 29, s. 8, had already been repealed fourteen years before. Assuming the 10 G. 4, c. 7, to have operated a repeal, this would amount to a re-enactment of the former law. It may be observed that all the acts relating to these estates concur in this error, if error it be: all treat the *142] property as being subject to the *conditions imposed by the 6 G. 1, c. 29, s. 8: and under these acts property has been sold and other property purchased and settled to the same uses and subject to the same conditions and restrictions, for a long series of years.

3. Then, as to the alleged incapacity of Earl Gilbert to take or to transmit an estate, by reason of the existing penal laws against Roman Catholics. It is submitted that Earl Gilbert was not by any of those laws disqualified from alienating the reversion, or that, at all events, it was well conveyed by the 6 G. 1, c. 29. Though they might in a certain sense have been disqualified from enjoying property, there was no statute in existence at the time which at all interfered with the rights of Roman Catholics, whether priest or layman, to transmit or to alien their estates in favour of Protestants, by any conveyance or act to take effect after their own deaths. The 1 Jac. 1, c. 4, and the 11 & 12 W. 3, c. 4, extended only to the life of the taker, and did not deal with the estate, but merely enabled the Protestant next of kin to take the profits during the life of the recusant tenant in tail: Thornby v. Fleetwood, 5 Bro. P. C. 203, 1 Stra. 318; Tredway's Case, Hobart 73; Ratcliffe's Case, 1 Stra. 267; Matlem v. Bingloe, Com. R. 570, Willes 75. The 11 & 12 W. 3, c. 4, was dealing with an incapacity to enjoy; the 8th section of the 6 G. 1, c. 29, with an incapacity to alien. [COCKBurn, C. J.-The former incapacity is defeasible by the party coming in and taking the oath and making the declaration prescribed: the latter is absolute.] The capacity cannot be acquired after the age of eighteen and a half in the one case; in the other it can.

4. The answer to the fourth point mentioned in the rule is threefold, -first, that Earl Gilbert is not proved by legal evidence to have passed beyond the seas and *to have been educated as a papist,[*143 secondly, that, if he were a person educated beyond the seas in the popish religion, still the reversion in fee did not descend upon him, and he was competent to alien,-thirdly, that it is perfectly immaterial whether he had any estate or not, for, the legislature, in passing the 6 G. 1, c. 29, were dealing with the inheritance, as it was perfectly competent to them to do.

The following authorities were also referred to:-Viner's Abridgment, Condition (T.), pl. 20, 21, citing Bro. Abr. Condition, pl. 67; Ib. pl. 65, citing Creagh v. Wilson, 2 Vern. 573; Ib. (G. c.), note to pl. 33; Ib. (I. c.), pl. 19, citing Skidmore's Case, D. 262 a, pl. 30; Comyns's Digest, Condition (D. 1); Co. Litt. 206 a, 206 b, 218 a; The Duke of Kingston's Case (Mr. Booth's opinion), 5 Cruise Dig. 9; Biddulph v. Biddulph, 5 Cruise Dig. 23; Kinnersley v. Stuart, 5 Cruise Dig. 26; Barrington's Case, 8 Co. Rep. 136; The Prior of Castleacre v. The Dean of St. Stephens, 8 Co. Rep. 138 a; Westby v. Kiernan, 2 Ambler 697; Brett v. Beales, M. & M. 421 (E. C. L. R. vol. 22); Doe d. Shelley v. Edlin, 4 Ad. & E. 582, 589 (E. C. L. R. vol. 31); Doe d. Cadogan v. Ewart, 7 Ad. & E. 636 (E. C. L. R. vol. 34), 3 N. & P. 197.

In conclusion, the learned counsel observed, that these estates having been dealt with and enjoyed by each successive Earl of Shrewsbury under and in accordance with the provisions of the act of 6 G. 1, c. 29, from the time of the passing of that act down to the date of the disentailing deed in 1856, it was not competent to any one to question the limitations created or confirmed by the act, or, after so great a lapse of time, to contend that the legislature was mistaken or imposed upon.

Argument for the defendants:-The statute 6 G. 1, c. 29, was based upon and is to be construed with reference to the then existing penal laws against Roman Catholics. The 8th section is applicable [*144 to Roman Catholics alone, and the disabilities with regard to the enjoyment and alienation of their estates expressed in that section have been entirely removed by the subsequent general acts for their emancipation. At the time the act passed, the existing laws with reference to the enjoyment of lands by Roman Catholics, were divisible into three classes or branches,-the first consisted of certain penalties and disabilities with regard to the enjoyment of lands consequent simply upon. recusancy (23 Eliz. c. 1, s. 3), the second, more stringent and penal, were addressed to those who either went or were sent abroad for the purposes of a popish education (3 Jac. 1, c. 4, s. 11),-and the third class consisted of penalties and disabilities created by the 11 & 12 W. 3, c. 4, s. 4.

The condition of the parties with whose rights and interests the statute 6 G. 1, c. 29, was dealing, was this:-Earl Gilbert, George Talbot, and John Talbot of Longford, were all Roman Catholics. Now, the 4th section of the 11 & 12 W. 3, c. 4, describes and legislates with respect. to four distinct things,-first, with regard to infants who have been educated in the popish religion, who are under the age of eighteen and a half, and who are entitled to any estate by virtue of any descent, devise, or limitation taking effect with regard to such infants before they attain that age; and they are placed under a disability to inherit or take

"by devise, descent, or limitation," any lands, tenements, or hereditaments during the life of such infant, or until he or she do take the oaths and make, repeat, and subscribe the declaration formerly spoken of by the statutes. This was a state of law which in all probability became applicable to the issue of George Talbot and John Talbot of Longford, *145] should there be any, because, under the limitations of the *settlement of 1700, the will of the duke, and the settlement of 1718 (to the father, that is, to George for life, remainder to his first and other sons, &c.), the children of George and John Talbot would take as purchasers. A devisee was held to take as a purchaser under that clause Vane v. Fletcher, 1 P. Wms. 352; Hill v. Filkin, 2 P. Wms. 6, 9 Mod. 154, 10 Mod. 481, 536; Carrick v. Errington, 2 P. Wms. 361; Davers v. Dawes, 3 P. Wms. 42; Rooper v. Ratcliffe, 5 Bro. P. C. 360; Jones v. Meredith, 2 Com. Rep. 661; Fairclaim d. Borlace v. Newland, Vin. Abr. (I. 7), pl. 4.

By operation of this section, George and John Talbot, who were adult persons at the time when the settlements and the will would take effect, were incapable of taking any estate whatever under and by virtue of the limitations contained in those instruments. Gilbert Talbot being declared incapable of taking by devise or by purchase, it followed, as a matter of course, that, at the time of the passing of the 6 G. 1, c. 29, George Talbot and John Talbot were by force of that enactment incapable of joining for the purpose of alienation in any common recovery, which alone would be the form of alienation which could bar remainders or reversions expectant upon the estates tail limited to their children.

In Ratcliffe's Case, 1 Stra. 267, the tenancy in tail was created under and by virtue of an indenture of lease and release dated in March, 1687 (anterior, therefore, to the day mentioned in the 11 & 12 W. 3, c. 4, the 10th of April, 1700), and therefore exempted from the operation of the subsequent part of s. 4. In Pye v. George, cited by Sir E. Northey, in the argument of Thornby v. Fleetwood, I Stra. 318, 364, it is said that "the subsequent words controlled the former, so that they carried away no more than a pernancy of the profits, and the legal estate descended notwithstanding.'

*146] *The severity of the penal laws against Roman Catholics was relaxed by various acts,-11 G. 2, c. 17, 18 G. 3, c. 60, 31 G. 3, c. 32, 43 G. 3, c. 30, and 10 G. 4, c. 7,-the 18 G. 3, c. 60, operating a conditional repeal in favour of Roman Catholics of the 11 & 12 W. 3, c. 4, provided they took the oaths prescribed by that statute; and the general Emancipation Act, 10 G. 4, c. 7, abolishing the oaths of Roman Catholics, and providing that persons of that persuasion shall have a general liberty to hold and enjoy lands.

The following authorities were also referred to:-Sir Anthony Mildmay's Case, 3 Co. Rep. 41 a; Grotius, Book 2, ch. 6, § 1; Corley's Statutes against Papists; Bacon's Abridgment, Condition, Statute; Dwarris on Statutes 269; Pelham v. Fletcher, 6 Bac. Abr. 130; Chance v. Adams, Hardres 324 Hervey v. Aston, Willes 83; Vane v. Fletcher, 2 P. Wms. 352; Woolmore v. Burrows, 1 Sim. 512; Dore v. Gray, 2 T. R. 358; Woodward v. Cotton, 1 C. M. & R. 44;† The Churchwardens, &c., of Deptford v. Sketchley, 8 Q. B. 394 (E. C. L. R. vol. 55); Russell v. Ledsam, 14 M. & W. 574.†

COCKBURN, C. J.-This case has occupied the court so long a time,

and has had so much light thrown upon it by the elaborate argumente of which the court has had the assistance, and we have had such full and abundant opportunity and materials for the consideration of the great questions involved in it, that we have been enabled to come to a clear and decided opinion, and I think, therefore, that we ought not, merely on account of the magnitude of the interests involved, to delay pronouncing our judgment, or, by any apparent hesitation, to seern to give countenance to the supposition that any doubt exists in our minds, when, in point of fact, none whatever does exist. We feel, therefore, that we ought at once to pronounce our judgment.

*The great question in the case is, whether Bertram Arthur, the late Earl of Shrewsbury, being tenant in tail in possession of [*147 the estates in question, was competent, by executing a disentailing deed, to put himself in a position to aliene these estates as he might think proper. This question will depend ultimately upon the construction to be put upon the provisions of the Shrewsbury Estate Act of the 6 G. 1, e. 29. The plaintiff contends, that, by force of that act, aided by the repeal of the qualifying provision of the 8th section of the more recent Estate Act of the 6 & 7 Vict., inalienability was, by legislative enactment, annexed to the estate tail. The defendants join issue with the plaintiff upon that question. But, before they come to this great battle-ground, the defendants take two positions, their success in either of which would altogether preclude the necessity of entering into the consideration of the effect of the statute 6 G. 1. It becomes, therefore, necessary to deal with this part of the controversy in the outset.

In the first place, the defendants affirm that Earl Bertram Arthur was seised of these estates under and by virtue of the prior settlement of the Duke of Shrewsbury of the year 1700, which they allege to have been a co-existing and co-ordinate settlement; and they contend, that, although it may be true, that, so long as they were under the necessity of resorting in the then state of the law to the posterior settlement of 1718, and the act of parliament which confirmed it,-which, taken together (as it is a form of expression which appears to me both compendious and convenient), I shall, throughout the observations I am about to make, call "the parliamentary settlement," for protection and immunity from the existing law, they were not in a condition to alienate; yet, when by the alteration of the law affecting Roman *Catholics it was no longer necessary to seek protection under [*148 that parliamentary settlement, then, as the other remained in independent and unimpaired force and vigour, and as the late earl was tenant in tail under it, without any incapacity as to alienation attaching to him, it was competent to him to bar the entail and dispose of the estate. This position is met by an antagonistic one on the part of the plaintiff, that the settlement of 1700 was entirely abrogated, superseded, and set aside by the posterior parliamentary settlement. And, if this contention of the plaintiff is right, no doubt it follows, as a matter of course, that, if the effet of the 6 G. 1 was to prevent alienation, unless that provision has been done away with by any subsequent alteration of the law, the late earl was not competent to alienate. It becomes, therefore, a preliminary question of very great importance how far the settlement of 1700 continued in force.

On the part of the defendants, we are told with truth that there is