« iepriekšējāTurpināt »
prevent the retailing of wine within either of the Universities in that part of Great Britain called England, without license."
Taken in connection with what are acknowledged parts of the statute, (which it is not) the title, where the intent is not plain, may slightly assist in removing ambiguities, although it frequently alludes to the subject matter of the act, only in the most general or sweeping terms, and very often is not co-extensive with the provisions of the act.
The preamble to a statute usually contains the motives and inducements to the making of it; but it also has been held to be no part of the statute; or, rather, it is not an essential part, and is frequently omitted."
A preamble is not only not essential, and often omitted, but it is, strictly speaking, without force in a legislative sense; being but a guide to, and not the vehicle of, the import of the statute.a And to what is it properly a guide, to the meaning of the enactment? No; but to the intentions of the framer, which is only the first stage on the road, in the construction of statutes.
"The influence of the preamble," says Story, in his Commentary on the constitution of the United States of America, has a foundation in the exposition of every code of written law,-upоL the universal principle of interpretation,-that the will and inten tion of the legislature is to be regarded and followed."
The preamble, is entitled to great consideration. It is, indeed, that introductory statement (procemium,) to which both reason and authority point, for ascertaining the intention of the enactment.
"The preambie is properly referred to," says the American commentator, "when doubts or ambiguities arise upon the words of the enacting part. The preamble can never enlarge; it can
R. v. Althoes, 8 Mod. 144; 6 Mod. 62; Wills and Wilkins, 6 Mod. 144. NOTE 6. The preamble of an act, is the recital by way of introduction, or inducement to the enacting part, of the reasons upon which the enactment is founded. The preamble of a public statute recites the inconveniences which it proposes to remedy,-as that doubts exist as to what the law is, or that some form of offence has been of frequent occurence, which it is necessary to punish with additional severity; or, the advantages which it proposes to effect; as in the New York Code; "whereas, it is expedient that the present forms of actions and pleadings in cases at common law should be abolished, that the distinction between legal and equitable remedies should no longer continue, and that an uniform course of proceedings in all cases should be established," therefore, etc. The reasons upon which a public statute is passed, are not generally of such a nature that they can be fully set forth with precision, and are too numerous to be recited, and they are, therefore, generally omitted. The preamble to a private statute, if used, should set forth the facts upon which it is founded. With us, in this country, in both public and private statutes, preambles are now omitted, as the general rule.
not confer any powers, per se. Its true office is to expound powers conferred, not substantially to create them."a
In doubtful cases, recourse may be had to the preamble, to discover the inducements the legislature had to the making of the statute; but where the terms of the enacting clause are clear and positive, the preamble cannot be resorted to. Lord Coke considered the rehearsal or preamble, a key to open the understanding of the statute, and it is properly considered b a good mean for collecting the intent and showing the mischiefs which the makers of the act intended to remedy. The civilians say, cessante legis proemio, cessat et ipsa lex, but English lawyers are aware how seldom, at least in the older statutes, the key will unlock the casket; how rarely the preamble is found to state the real occasion of the law, and the full views of the proposer of it. "It is nothing unusual in acts of Parliament," says Lawrence, J., in the case of the King and Marks, "for the enacting part to go beyond the preamble; the remedy often extends beyond the particular act or mischief which first suggested the necessity of the law." "Sometimes," it is well expressed by another reporter, "the legislature having a particular mischief in view, which was the primary object of the statute, merely state that in the preamble, and then go on in the body of the act, to provide a remedy for general mischiefs of the same nature, but of different species, neither expressed in the preamble, nor, perhaps, then in immediate contemplation." Indeed, Lord Coke's manner of expressing himself is very observable. Instead of saying that the preamble should control the enacting clauses, or of limiting precisely how far it should have that effect, which would have been attempting to mark a line, where, it is to be feared, one cannot be drawn, he cautiously says, that it is a good mean to find out the intention. In a late case, it was decided that a preamble may be important when the enactment which follows is capable of two senses. But, it is added, "though it may assist in construing ambiguous expressions, it cannot control clear ones."c Indeed, what sort of influence the preamble ought to have in expounding statutes, will be best explained by examples, at a future time, when the rules of a Story's Com. Rules of interpretation of the Constitution, etc.
b 4 Inst. 330. c The Salters Co. v. J., 3, 2 B. R. 109. NOTE 7.-The preamble may be resorted to in aid of the construction of the enacting clause, if any ambiguity exists. Beard v. Rowan, 9 Peters, 301; Crespigny v. Witteboom, 4 T. R. 793; Sir Wm. Jones, 163; Barker v. Redding, Palmer 485; Bac. Abr. 380; Jackson v. Gilchrist, 15 John. R. 89, id. 116; Constantine v. Van Winkle, 6 Hill, 184; Clark v. Bynum, 3 McCord, 298; United States v. Webster, Davies R. 38; Blue v. McDuffie, Busbee Law, N. C. 131.
It is properly referred to, when doubts and ambiguities arise upon the words of the enacting part. It can never enlarge; it cannot confer any power per se Its true office is to expound powers conferred; not to create them.
construction applicable to distinct parts of statutes are taken into consideration.
It will, perhaps, be found, that the rule is stated at once broadly, and with the greatest accuracy, by two of the judges, (Mr. Justice Buller, and Mr. Justice Grose,) in the case of Crespigny v. Wittenoom ;a that the preamble may be compared with the different clauses of the act, to collect the intention of the legislature; and where the intention is apparent not to extend the act, the preamble may be used in restraint of the generality of the enacting clause, where it would be inconvenient if not restrained; or it may be resorted to in explanation of the enacting clause, if it be doubtful.
Such is the whole extent of the influence of the title and preamble. Barrington has shown in his observations on the statutes, 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 were entertained. The most common recital for the introduction of any new regulation, has been to set forth that doubts have arisen at the common law. Frequently these alleged doubts never existed at all; and such preambles are supposed, therefore, to have much weakened the force of the common law, in several instances.
The preamble of an act of Parliament, reciting that certain outrages had been committed in particular parts of the kingdom, was adjudged by the court of King's Benchb to be admissible in evidence for the purpose of proving an introductory averment in an information for a libel, that outrages of that description had existed. Public acts of Parliament, it was said, are binding upon every subject; the judges are bound to take judicial notice of their contents; every subject is, in judgment of law, privy to the making of them, and supposed to know them; the passing of an act of Parliament is a public proceeding in all its stages, and when the act is passed, it is, in contemplation of law, the act of the whole body of the kingdom. The court of King's Bench, for these reasons, were of opinion that the preamble in question had been properly admitted in evidence.
A preamble is often prefixed to a particular clause, whose tenor is to be guided by it.
The true meaning of the statute is generally and properly to be sought from the purview, providing part, or body of the act. The preamble of a statute is no more than a recital of some inconveniences which by no means excludes any other, for which a remedy is given by the enacting part of the statute. Great doubts have existed how far the preamble should control the enacting part of a statute; but abundant cases have established that where the words in the enacting part are strong enough to take in the b 3 Atk. 204; Cowp. 653.
a 4 T. R. 193.
mischief intended to be prevented, they shall be extended for that purpose, though the preamble does not warrant it; in other words, the enacting part of the statute may extend the act beyond the preamble.
It will be found also, to be 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 the statute, taken and compared together. In construing acts of Parliament the courts are not to look only at the language of the preamble, or of any particular clause. If they find in the preamble, or in any particular clause, an expression not so large and extensive in its import as those used in other parts of the act, &c., it is their duty to give effect to the larger expressions.a Indeed a statute ought, upon the whole, to be so construed, that, if it can be prevented, no clause, sentence, or word, should be superfluous, void, or insignificant.b
But the general words in one clause of a statute may be restrained by the particular words in a subsequent clause of the same statute.c Where a general intention is expressed, and the act also expresses a particular intention incompatible with the general intention, the particular intention is to be considered in the nature of an exception.d While, if a particular thing be given or limited in the preceding parts of a statute, this shall not be taken away or altered by any subsequent general words of the same statute.e Indeed, where the intention of the legislature is not apparent to that purpose, the general words of another and later statute shall not repeal the particular provisions of a former one.ƒ "It cannot be contended," says Lord Kenyon, " that a subsequent act of Parliament will not control the provisions of a prior statute, if it were intended to have that operation; but there are several cases in the books to show, that when the intention of the legislature was apparent that the subsequent act should not have such an operation, there, even though the words of such statute taken strictly and grammatically would repeal a former act, the courts of law, judging for the benefit of the subject, have held that they ought not to recieve such a construction.g And, if in the same act of Parliament, there be one clause which applies to a particular case, and another which is conceived in general terms, the former shall not restrain the signification of the latter.h
a Per Lord Tenterden, Doe dem Bywater and Brandling, 7 B. & C. 643.
b 1 Show. 108, R. v. Burchett, Hard. 344.
c R. v. Archbishop of Armagh, 8 Mod. 8.
d Churchill v. Crease, 5 Bing. 180; referred to in Terrington and Hargraves, [b. 492, 3.
e Stanton v. The University of Oxford, 1 Jon. 26.
f Gregory's case, 6 Rep. 19 b.; Foster's case, 11 Rep. 68 b.
g Williams v. Pritchard, 4 T. R. 2, 4.
h2 T. R. 164.
"Every word importing the plural number, shall extend and be applied to one person or thing, as well as to several persons and things; and every word importing the masculine gender only, shall extend and be applied to a female as well as to a male, &c."
Whether this arbitrary enlargement or contraction, of the ordinary meaning of words, has answered its intended purpose, is at the best, very doubtful. It must often be a question, whether the context does reasonably admit of the arbitrary construction of the words used. Amendments introduced on the sudden, will be often made by members of the legislature who are inexperienced, and little aware of the arbitrary change in the sense of ordinary terms. Definitions are not always found to render the meaning more clear; and they are sometimes, perhaps invidiously, suspected of being used to disguise the meaning. When a proposition is wanted which cannot be openly proposed, inquiry is censoriously said, to be oftentimes made, whether it cannot be concealed in a construction clause. In Courts of law, the interpretation clause is too often found to require an interpreter; and it may be questioned, whether it ever succeeds in giving an improved expression of the will of the lawgiver.
Interpretation clauses are by no means to be strictly construed, and convenience seems likely to lead to their being practically disregarded.
NOTE 8.-A legislature cannot authoritatively interpret, or declare what the law is, or has been, but only what it shall be. It is the province of the court todeclare the law of an existing statute. Ogden v. Blackledge, 2 Cranch 272; Ashley's case, 4 Pick. 23.
When the constitutional validity of a law is in controversy, and the law itself may be ambiguous in its import, that construction must be given to it which will sustain its validity, rather than the one which will render it inoperative and void. Bosevelt v. Goddard, 52 Barb. 533, 548; Ogden v. Saunders, 12 Wheat. 270.
The presumption is always in favor of the constitutionality of a law, and before declaring it void, the court must be satisfied that it violates the constitution, clearly, plainly, palpably. Speer v. School Directors, 50 Penn. St. R. 150; Brown v. Buzan, 24 Ind. 194. This, however, is only a presumption, and is not to be indulged to the extent of making all statutes constitutional, on the ground that we must presume the legislature intended to make all their acts effective, but only that the court, if possible, must give the statute such construction as will enable it to have effect, and to uphold it when not in conflict with the constitution. People v. Supervisors of Orange, 17 N. Y. 241. And this rule, I understand is the same whether applied to a part, or to the whole of a statute, when the whole is assailed; it is void only as to the excess of power. Nelson v. the People, 33 Ill. 390; McCullock v. State, 11 Ind. 424.
It is a curious, as well as an interesting study, to watch the progressive spirit of the periods, and to see how just in proportion, as the natural rights of man are understood, just in the same proportion are restraints imposed upon absolute and arbitrary acts of the government; and just in degree, as rights become