b

assist in removing ambiguities where the intent is not plain; for when the mind labours to discover the intention of the legislature, it seizes every thing, even the title, from which aid can be derived. So, the preamble may be resorted to in order to ascertain the inducements to the making of the statute; but when the words of the enacting clause are clear and positive, recourse must not be had to the preamble. Notwithstanding that Lord Coke considers the preamble as a key to open the understanding of the statute, Mr. Barrington, in his Observations on the Statutes, has shown, by many instances, that a statute frequently recites that which was not the real occasion of the law, or states that doubts existed as to the law, when, in fact, none had existed. The true rule is, as was declared by Mr. J. Buller in Crespigny v. Wittenoom, that the preamble may be resorted to in restraint of the generality of the enacting clause, when it would be inconvenient if not restrained, or it may be resorted to in explanation of the enacting clause, if it be doubtful. This is the whole extent of the influence of the title and preamble in the construction of the statute. The true meaning of the statute is generally and properly to be sought from the body of the act itself. But, such is the imperfection of human language, and the want of technical skill in the makers of the law, that statutes often give occasion to the most perplexing and distressing doubts and discussions, arising from the ambiguity that attends them. It requires great experience, as well as the command of a perspicuous diction, to frame a law in such clear and precise terms as to secure it from ambiguous expressions, and from all doubt and criticism upon its meaning.

It is an established rule in the exposition of statutes, that the intention of the lawgiver is to be deduced from a view of the whole, and of every part of a statute, taken and

a Co. Litt. 79. a.

b P. 300.

c 4 Term, 793.

compared together. The real intention, when accurately ascertained, will always prevail over the literal sense of terms. Scire leges, non hoc est verba earum tenere sed vim ac potestatem, and the reason and intention of the lawgiver will control the strict letter of the law, when the latter would lead to palpable injustice, contradiction, and absurdity. This was the doctrine of Modestinus, Scævola, Paulus, and Ulpianus, the most illustrious commentators on the Roman law. When the words are not explicit, the intention is to be collected from the occasion and necessity of the law, from the mischief felt, and the remedy in view; and the intention is to be taken or presumed, according to what is consonant to reason and good discretion. These rules, by which the sages of the law, according to Plowden, have ever been guided in seeking for the intention of the legislature, are maxims of sound interpretation, which have been accumulated by the experience, and ratified by the approbation of ages.

The words of a statute are to be taken in their natural and ordinary signification and import; and if technical words are used, they are to be taken in a technical sense. A saving clause in a statute is to be rejected, when it is directly repugnant to the purview or body of the act, and could not stand without rendering the act inconsistent and destructive of itself. Lord Coke, in Alton Wood's case, gives a particular illustration of this rule, by a case which would be false doctrine with us, but which serves to show the force of the rule. Thus, if the manor of Dale be by express words given by statute to the king, saving the right of all persons interested therein, or if the statute vests the lands of A. in the king, saving the rights of A., the interest of the owner is not

a Dig. 1. 3. 17. Ibid. lib. 27. 1. 13. 2.

b Plowd. Rep. p. 205.

c Plowd. 565. 8 Taunton, 13-18.

d 1 Co. 47. a.

d

saved, inasmuch as the saving clause is repugnant to the grant; and if it were allowed to operate, it would render the grant vain and nugatory. But there is a distinction in some of the books between a saving clause and a proviso in the statute, though the reason of the distinction is not very apparent. It was held by all the barons of the exchequer, in the case of The Attorney General v. The Governor and Company of Chelsea Water Works, that where the proviso of an act of parliament was directly repugnant to the purview of it, the proviso should stand, and be held a repeal of the purview, because it speaks the last intention of the lawgiver. It was compared to a will, in which the latter part, if inconsistent with the former, supersedes and revokes it. But it may be remarked, upon this case of Fitzgibbon, that a proviso repugnant to the purview of the statute, renders it equally nugatory and void as a repugnant saving clause; and it is difficult to see why the act should be destroyed by the one, and not by the other, or why the proviso and the saving clause, when inconsistent with the body of the act, should not both of them be equally rejected. There is also a technical distinction between a proviso and an exception in a statute. If there be an exception in the enacting clause of a statute, it must be negatived in pleading; but if there be a separate proviso, that need not."

Several acts in pari materia, and relating to the same subject, are to be taken together, and compared, in the construction of them, because they are considered as having one object in view, and as acting upon one system. This rule was declared in the cases of Rex v. Loxdall, and the Earl of Ailesbury v. Patterson; and the rule applies, though some of the statutes may have expired, or are not referred to in the other acts. The object of the rule is to ascertain and carry into effect the intention; and it is to be in

a Fitzg. 195. 4 Geo. II.

b Abbot, J. 1 Barn. & Ald. 99.

c 1 Burr. 445. Doug. 27. See also, Vernon's Case, 4 Co. 4.

ferred, that a code of statutes relating to one subject, was governed by one spirit and policy, and was intended to be consistent and harmonious in its several parts and provisions. Upon the same principle, whenever a power is given by a statute, every thing necessary to the making of it effectual, or requisite to attain the end, is implied. Quando lex aliquid concedit, concedere videtur et id, perquod devenitur ad illud.

Statutes are likewise to be construed in reference to the principles of the common law, for it is not to be presumed the legislature intended to make any innovation upon the common law, further than the case absolutely required. This has been the language of the courts in every age ; and when we consider the constant, vehement, and exalted eulogy which the ancient sages bestowed upon the common law, as the perfection of reason, and the best birthright and noblest inheritance of the subject, we cannot be surprised at the great sanction given to this rule of construction. It was observed by the judges, in the case of Stowell v. Zouch, that it was good for the expositors of a statute to approach as near as they could to the reason of the common law; and the resolution of the barons of the exchequer, in Heydon's case, was to this effect. For the sure and true interpretation of all statutes, whether penal or beneficial, four things are to be considered: What was the common law before the act; what was the mischief against which the common law did not provide; what remedy the parliament had provided to cure the defect; and the true reason of the remedy. It was held to be the duty of the judges, to make such a construction as should repress the mischief, and advance the remedy.

In the construction of statutes, the sense which the contemporary members of the profession had put upon them, is deemed of some importance, according to the maxim that

contemporanea expositio est fortissima in lege. Statutes that are remedial and not penal, are to receive an equitable interpretation, by which the letter of the act is sometimes restrained, and sometimes enlarged, so as more effectually to meet the beneficial end in view, and prevent a failure of the remedy. This may be illustrated in the case of the registry acts, for giving priority to deeds and mortgages, according to the dates of the registry. If a person claiming under a registered deed or mortgage, had notice of the unregistered prior deed when he took his deed, and procured the registry of it in order to defeat the prior deed, he shall not prevail with his prior registry, because that would be to counteract the intent and policy of the statutes, which were made to prevent and not to uphold frauds. Statutes are sometimes merely directory, and, in that case, a breach of the direction works no forfeiture or invalidity of the thing done; but it is otherwise if the statute be imperative.

Effect of temporary

If an act be penal and temporary by the terms or nature of it, the party offending must be prosecuted and statutes. punished before the act expires, or be repealed. Though the offence be committed before the expiration of the act, the party cannot be punished after it has expired, unless a particular provision be made by law for the purpose. If a statute be repealed, and afterwards the repealing act be re

a Miller's case, 1 Wm. Blacks. Rep. 451. The Irresistible, 7 Wheaton, 551. The United States v. Passmore, 4 Dallas, 372. The State v. Cole, 2 M'Cord's Rep. 1. Anon. 1 Washington's Circuit R. 84. The State v. The Tombeckbee Bank, 1 Stewart's Ala. R. 347. The same as to judicial proceedings begun under an act and not finished when it is repealed. They cannot be pursued. 1 W. Blacks. 451. 4 Yates, 392. Wharton's Dig. 569, n. 6. But it seems, that a seaman in the navy, put under arrest before his term of service expired, may be retained for trial by a court martial after his term has expired. This rule of construction is indispensable to the discipline of the navy. Case of Walker on hab. corp. The American Jurist, No. 6. p. 281.