THE Act takes notice of Sir John Danvers's Crime , which was High-Treason , and intended to inflict the same Forfeiture as to his Estate , he having by Death avoided being Attainted , as would have been had he been in Life and Attainted : and he is reputed by the Act as a Person Attaint .

The intent of the Parliament is manifestly otherwise ; for Sir John Danvers was pardoned by the Act of Indemnity , as to all Personal Punishments , and there is a particular Clause in that Act , which says , it shall be construed most beneficially for the Subject ; and though his Lands , &c. were reserved to further Forfeiture , yet the Estate Tail cannot be forfeited , unless you suppose him Attainted , which is a personal Punishment , and contradictory to the very Words and Design of this Statute ; for there were several others involved in the same Crime , who were Attainted after their Deaths . Sir John Danvers not Attainted , by which it is plain , That the Parliament never intended an Equality of Punishment , but a Favour to the Posterity of Sir John Danvers . But a Construction according to the Objection , would put the Attainted and Unattainted into the same Circumstances , and confound the Distinction made by the Statutes relating to this matter .

The Words of the Act are as comprehensive as may be , and extend to forfeit all Lands , and all Estates , in them , by the comprehensive Words of Rights , Interests and Hereditaments , which must extend to the inheritance in Lands , or to nothing , the Offender being dead .

The Words are not sufficiently comprehensive , for Rights and Interests are mentioned only in opposition to Possessions , and to make the Right which Sir John Danvers had to any Estate , of which he was out of Possession , forfeitable to the Crown . And as to the word Hereditaments , that cannot include an Estate Tail , as will appear by the Construction of former Laws , particularly of the Statutes of Bankrupts : for though the Statute of 13 Eliz . chap. 7 made all the Lands and Hereditaments of the Bankrupt liable to be sold for the Payment of his Debts , yet an Estate Tail was never taken to be within that law ; but the Statute 21 Jac . chap. 19. to supply that Defect , gave the Commissioners Authority to sell them by express Words , viz. by the Words Estates Tail : and if the word Hereditaments could have given away an Estate Tail , there had been no need to have added the Words , Any Estate of Inheritance , in the Statute of 26 Hen . 8. which were the only Words that made Estates to be forfeitable for Treason , and were put in for that purpose .

Estates Tail were alienable by common Recoveries and Fines , and thereby the Perpetuity created by the Statute of Westminster 2. de Donis conditionalibus , liable to be broken , are forfeitable ; a Forfeiture being in nature of Alienation by the general Words of an Act of Parliament , as appears from the Statute of 26 Hen . 8 by which Act Estates Tail are forfeitable for Treason , under the general Words of Estates of Inheritance : and by the same Reason the Words Rights , Interests and Hereditaments , in the Act of Pains and Penalties , which is agreed to extend to carry an Estate in Fee Simple , shall as well extend to an Estate Tail : and it may be as well denied , that an Estate in Fee Simple as in Fee Tail , is forfeited by this Act , the Words being no more expressive of one Estate than the other .

Though Estates Tail are weakned since the Statute of Westminster 2. de Donis , by subsequent Laws ; yet as to this purpose the Statute Westminster 2. continues in its primitive Force and Vigour . And though by the Statute 4 Hen . 7. Tenant in Tail is enabled to bar his Issue by a Fine , yet he cannot do it by a Feoffment , because as to that particular Conveyance the Estate Tail is yet within the Protection of the Statute of West . 2. So though the Statute 26 Hen . 8. gives the Estate of Tenant in Tail , attainted of Treason to the Crown , by the plain Words of any Estate of Inheritance ; it cannot thence be concluded , that the Act of Pains and Penalties shall give an Estate Tail , without using those Words , or any of the same import , And without any Attainder .

And these words , any Estate of Inheritance , are not general Words , as is alledged , but properly expressive of an Estate Tail , because an Estate Tail is an Estate of Inheritance . But the words , Rights , Interests and Hereditaments , only explain the Things design'd to be forfeited , but mention not what Estate in those things shall be forfeited , but leave that to the Construction of Law , which has always resolved that such general Words for this reason , shall not extend to an Estate Tail .

The Act intended the Offenders Estates should not be enjoyed by their Children ; for in the general Saving there is an exception of the Wife , Child , or Children of the Offender .

This Saving extends not to this Case , for that was to save Estate , that would have been forfeited if no Conveyance had been made , but the Estate Tail would not have been forfeited , because that stands still protected by the Statute de Do 〈…〉 .