2. Popish Education abroad.

By the 27 Eliz. c. 2, s. 6, it is punishable, as in a præmunire, for any one born within the queen's obedience to send relief, directly or indirectly, if done wittingly and willingly, out of the realm and its actual dominions, to any jesuit, priest, deacon, religious, or ecclesiastic born within the realm or its actual dependencies, and ordained or professed by authority from Rome, or to any jesuit college, or foreign seminary, or person of or in the same, not returned into the realm with submission and continuing in it. By the 1 Jac. I. c. 4, ss. 6, 7, it is enacted that all persons under the queen's obedience, sending any child or other person under their government, into any foreign parts out of the queen's obedience, with intent to enter or reside in any college, seminary, or house of jesuits, priests, or other popish order, profession, or calling; or to be instructed, persuaded, or strengthened in the popish religion, or to profess the same, shall, for every such offence, forfeit 1007. to the queen. And the person so passing or sent, shall be personally, but not in respect to his or her heirs or posterity (x), disabled to inherit, purchase, take, or enjoy any real or personal estate whatsoever in England or its then actual dominions; and all trusts, confidences, and interests whatsoever for his or her benefit shall be utterly void. It seems uncertain whether the 1007. will go to the informer or to the crown, notwithstanding the express language of this act, it being doubtful if the 11 & 12 Will. III. applies to it or not. (Post, p. 58.)

(x) In Thornby v. Fleetwood, 10 Mod. 113, it was held that an estate tail being within the meaning of this enactment, the life-interest only of the first taker under the limitation was forfeited by his having been educated abroad contrary to the act,

and that, too, only during nonconformity. It therefore followed, that neither the estate tail, nor his right to suffer a recovery in respect of it, were affected by the disability so qualified.

No woman, nor child within the age of 21 years, not being a sailor, ship-boy, or apprentice, or factor of some merchant in trade of merchandize, shall pass the seas without the queen's or six privy councillors' written license. It is not required, however, to be sealed. The officer of the port "willingly or negligently" suffering their passage, or not entering the names of such licensed passengers, shall forfeit office, and all his goods and chattels; and the owner of the vessel "wittingly or willingly" carrying such unlicensed persons, shall forfeit the vessel and tackle; and every master or mariner "of or in" such vessel, shall forfeit all their goods, and be imprisoned for twelve months without bail or mainprise. (1 Jac. I. c. 4, s. 8.) The children and women so passing without license are only punishable as for a simple misdemeanour under this section; but by a statute passed a few years after (3 Jac. I. c. 5, s. 16), the children were made liable to almost the same penalties as though they had passed the seas with the intent mentioned in the 6th section of the 1 Jac. I. c. 4. It is forbidden to the children of any subject within the realm, (the said children not being soldiers, mariners, merchants, or their apprentices or factors,) to be sent or go beyond seas, without the queen's license, or the license of six privy councillors, (the principal secretary to be one,) "under their hands and seals." It is enacted that no such child so offending shall take any benefit, by "gift, conveyance, descent, devise, or otherwise," of any real or personal estate whatever, until he, being of the age of eighteen years, takes the oath prescribed at law, before a justice of peace for the dwelling place of the child's parents; and that in the meantime his or her next of kin, not being a popish recusant, shall have and enjoy the subject matter of such gift, conveyance, descent, or devise, until such child shall comply with the requisitions of the law; upon which such next of kin shall make account of his or her receipts, and in a reasonable time repay and restore them. The same section imposes on the party so sending such

children, the penalty of 1007., to be apportioned in equal thirds, between the queen, the poor, and the informer. But if the 11 & 12 Will. III. c. 4, s. 6, apply to this act, which, with submission to the learned Commissioners of Criminal Law, there is but little reason to doubt, the whole of the fine will now go to the informer. That section recites the statute of 1 Jac. I. c. 4, correctly enough, but mis-recites the particular terms of the 4th section. It mis-states the forbidden sending beyond seas to have been one with intent to educate "in the Romish religion," whereas in that act there is no mention made of the religion, but only "to prevent their good education in England, or for any other cause." And the apportionment of the penalty is incorrectly recited to have been made in equal moieties between the crown and the informer, the poor's third not being noticed. But these trivial inaccuracies in the preamble cannot affect the operation of the plain and unambiguous enacting clause. If it be so, however, it is difficult to understand the reasons which have led the learned commissioners to the conclusion, that the act intended to be recited must have been the 1 Jac. I. c. 4, between the language of which act, and that of the recital in the 11 & 12 Will. III. c. 4, there is far less resemblance than there is between the latter and the 3 Jac. I. c. 5, s. 16 (y).

It is also enacted by 3 Car. I. c. 2, that no one, being under the queen's obedience, shall pass or go, or convey or send, or cause to be sent or conveyed, any child or other person, out of any of the queen's dominions into parts beyond seas, out of her obedience, to the intent to enter, or be resident or trained in any priory, abbey, nunnery, popish university, college, or school, or house of jesuits or priests, or private popish family, and shall there be by any jesuits, seminary priests, friar, monk, or other popish person, instructed, persuaded, or strengthened in the popish religion in any sort to profess the

(y) Sixth Rep. of Cr. L. Comm. p. 109 (k).

same.

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It is also forbidden to convey or send, or cause to be conveyed or sent, money, "or other thing," for the maintenance of any child or person already gone or sent, or to go or be sent, AND trained and instructed as aforesaid," or towards the relief of any priory, abbey, nunnery, college, school, and religious house soever. Conviction of either of these offences will disable the party to sue at law or in equity, to be committee of any ward, executor, administrator, legatee or donee (by deed) of any person, or to bear any office within the realm; and such convict shall forfeit all his goods and chattels, and, during life or the continuance of his non-compliance, all his lands and hereditaments, rents, annuities, office, and estates of freehold. It has been decided (z) that the 3 Jac. I. c. 5, and the 3 Car. I. c. 2, did not repeal the 1 Jac. I. c. 4, but were made to explain, amend, and enforce it. It is difficult to understand how any doubt upon the point could have arisen. The rule is clear that all acts in pari materiâ are to be construed in the same manner, and to be read together as they would be, if they formed one act. Generally, unless the provisions of the Popery Acts are manifestly inconsistent, and incapable of being so construed, they must all be taken as consolidated in one enactment. Where they are inconsistent with one another, the later provision must be taken to be the law, and the earlier one to have been repealed by it.

Among acts prohibited as tending to the promotion of popery, the giving relief to persons guilty of that offence is included by express enactments.

Relieving Recusants.

Whoever shall willingly maintain, relieve, keep, or harbour in his house any servant, sojourner, or stranger, who shall forbear the established worship, without reasonable excuse, for a month together, shall for every month

(z) Thornby v. Fleetwood, 10 Mod. 113.

that he shall so maintain, &c., forfeit 107. (3 Jac. I. c. 4, s. 32.) And by s. 33, the same forfeiture is incurred by keeping such recusant "in service, fee, or livery." But this prohibition does not extend to one's father or mother being bonâ fide without a home or sufficient maintenance, nor to one's ward, nor to any person committed by authority to one's custody. (s. 34.)

Protestant Children.

Among the disabilities of Roman Catholics, the boon held out by the legislature to the conforming children of such, ought to be classed; as being of a strictly penal nature. "To the end that the protestant children of popish parents may not, in the lifetimes of such their parents, for want of fitting maintenance, be necessitated, in compliance with their parents, to embrace the popish religion contrary to their own inclinations," the 11 & 12 Will. III. c. 4, s. 7, enacts, that upon complaint of such refusal to the Lord Chancellor, Lord Keeper or Commissioners of the Great Seal, such order shall be made therein "as shall be agreeable to the intent of that act." An almost similar enactment was passed in the following reign, (1 Ann. st. 1, c. 30,) for the protection of Jewish conformists. Under that act it was decided by Lord Macclesfield (a), that it is not necessary that the application for relief should be made during minority. In that case the protestant child of the Jewish father was above forty, when she made her application to the court.

V.—DISABILITIES AS TO PROPERTY.

For reasons which will be evident to the reader, this subject has been reserved for a separate investigation in this place. It is conceived that the effect of the 10 Geo. IV. c. 7, s. 23, has been to abolish, unconditionally, and

(a) Vincent v. Fernandez, 1 P. W. 524.