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upon the imperfect expression of the will of the lawgiver, it will be proper to proceed with the exact enumeration of the parts of a statute.
And first of the saving clause.
The purview of an act may be qualified or restrained by a saving in the statute.a A saving in a statute, is only an exception of a special thing out of the general things mentioned in the statute.) But a saving clause in a statute, where it is directly repugnant to the purview or body of the act, and cannot stand without rendering the act inconsistent, and destructive of itself, is to be rejected.c But apart from a direct repugnacy, and short of a destructive saving, the general words in one clause of a statute may be restrained by the particular words in a subsequent part of the same statute.d
Where a general intention is expressed, and the act also expres ses a particular intention incompatible with the general intention, the particular intention is to be considered in the nature of an exception.e 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.f 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.g, “It cannot be contended," said 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 shew, 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 receive such a construction.”h 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.210
a 10 Mod. 155.
d Rex v. Archbishop of Armagh, 8 Mod. 8. e Churchill v. Crease, 5 Bing. 180; referred to in Terrington and Hargraves, ib. 492-3. f. Stanton v. the University of Oxford, 1 Jon. 26. g Gregory's case, 6 Rep. 19 b; Foster's case, 11 Rep. 68 b. h Williams v. Pritchard, 4 T. R. 2, 4.
i 2 T. R. 164. NOTE 10.-A saving clause in an act of Congress, saving State laws then in force, does not confine or validate such State law. If such State law contains a provision impairing the obligation of contracts, the act of congress merely leaves
proviso is something engrafted upon a preceding enactment, a and is legitimately used, for the purpose of taking special cases out of the general enactments, and providing specially for them. In its abuse, it contains all unconnected matters; and disposes of whatever is incapable of combination with_the rest of any clause. It was held by all the Barons of the Exchequer, in the case of the Attorney-General v. The Governor and Company of the Chelsea Waterworks, b 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 was said, 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. It has been remarked upon this case in Fitzgibbon, that a proviso repugnant to the purview, 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. The distinction in the effect and operation of a saving clause and of a proviso in a statute, will be found in the books, laid down as positive, and without qualification ; but the reason of the distinction, is certainly not very apparent.11
a 9 B. & C. 835.
Fitzg. 195; Bacon, Ab. tit. Statute. c Kent's Comm. on American Law, vol, 1, p. 430. them by such saving clause, to operate so far as constitutionally they may. Sturges v. Crowninshield, 4 Wheat. 122. 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. 1 Kent Com. 462; Plowd. 565, 8 Taunt. 13, 18.
The purview of an act may be qualified or restrained by a saving clause contained in it. This clause is only an exemption of some special thing, out of the general things mentioned in the act; but a saving clause therein which is directly repugnant to the purview of the act, and cannot stand without rendering the act inconsistent and destructive of itself, is to be rejected. Milton v. Elliot, 8 Taunt. 13. This, however, is not the rule as regards provisos.
NOTE 11.-The office of a proviso, generally, is either to except something from the enacting clause, to restrain its generality, or to exclude some possi. ble ground of misinterpretation of it, as extending to cases not intended by the legislature to be brought within its purview. Minis v. United States, 15 Peters, 423; Wyms v. Southard, 10 Wheat. 1-30.
A proviso in a statute, is to be strictly construed; it takes no case out of the enacting clause which is not fairly within the terms of the proviso. U. S. v. Dickson, 15 Pet. 141. The office of a proviso, generally is, either to except something from the enacting clause, to qualify or restrain its generality, or to exclude some possible ground of misinterpretation of its extending to cases ont
There is a known distinction in the law between an exception in the purview of the act and a proviso. If there be an exception in the enacting clause of a statute, it must be negatived in pleading; a separate proviso need not; c and that, although it is found in the same section of the act, if it be not referred to, and engrafted on, the enacting clause.d "The rule is," said Mr. Justice Ashurst, in Spiers v. Parker, "that any man who will bring an action for a penalty on an act of Parliament, must show himself entitled under the enacting clause; but if there be a subsequent exemption, that is a matter of defence, and the other party must show it, to exempt himself from the penalty." Mr. Justice Buller said, "I do not know any case for a penalty on a statute where there is an exception in the enacting clause, that the plaintiff must not show that the party whom he sues, is not within it.' So, in a crimnal case, Lord Mansfield said, "what comes by way of proviso in a statute, must be insisted on for the purposes of defence by the party accused; but where exceptions are in the enacting part of the law, it must in the indictment charge that the defendant is not within any of them."a"
a 1 T. R. 141; 8 T. R. 542.
b 1 B. and A. 94.
c Fost. 430, 1 East R. 664; Burr R. 148, East. P. C. 167. intended to be brought within its purview. Minis v. U. S. 15 Pet. 423; Huydkaper v. Burrus, 1 Wash. C. C. R. 119.
If a proviso in a statute, be directly contrary to the purview of the statute, the proviso is good, and not the purview. Townsend v. Brown, 4 Zabrish, (N. J.) 80; Rex v. Justices of Middlesex, 2 B. and Adol. 818. But contra,-" a proviso repugnant to the purview of the statute, renders it equally nugatory and void, as & 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." 1 Kent Com. 463. And it is a settled rule, that where there is a proviso to a grant which is repugnant to the grant itself, the grant shall be good, and the proviso only void. Mason v. Boom Co. 3 Wall. Jr. C. C. R. A proviso is a limitation or exception, to the authority conferred, the effect of which is to declare, that the one shall not operate, or the other be exercised, unless in the case provided. Voorhees v. Bank of United States, 10 Peters, 471.
So it seems, that a saving clause in a statute in the form of a proviso, restricting in certain cases the operation of the general language of the enacting clause, was not void, though the proviso be repugnant to the general language of the enacting clause. The true principle undoubtedly is, that the sound interpretation and meaning of the statute, on a view of the enacting clause and proviso, taken and construed together, is to prevail. If the principle object of the act can be accomplished and stand, under the restriction of the saving clause or proviso, the same is not to be held void for repugnancy. 1 Kent Com. 463, note a; Savings Bank v. Makin, 23 Maine R. 360.
NOTE 12.-It may be as well here, to notice the distinction between a proviso and an exception contained in the purview of an act, although the exception is a
By the statute, 33 Geo. 3, c. 13, the indorsement by that act directed to be made by the clerk of the Parliaments, on every act of Parliament, of the day, month, and year, when the same shall have passed, and shall have received the royal assent, shall be taken to be A PART OF SUCH ACT, &c.
Such are the parts of a statute; the next chapter will be a consideration of its qualities and incidents.
question that relates chiefly to pleading. An exception in the statute, must be negatived in pleading, but a proviso need not, and this seems to be upon the ground that an exemption is matter of defence which a party must show, to exempt himself from the liability or penalty. Spiers v. Parker, 1 Tenn. R. 141. So, too it has been held, in case of an exception, the plaintiff who sues, must show that the party whom he sues, does not come within it. 1 Kent Com. 463; People v. Toynbee, 11 How Pr. R. 333; 1 Chitt. Cr. L 284.
OF THE QUALITIES, INCIDENTS, AND GENERAL RULES AND MAXIMS
OF INTERPRETATION OF STATUTES.
AMONG all civilized nations, we have always seen, formed by the side of the sanctuary of the laws, and under the controlin guidance of judicial and legislative wisdom, a fund of maxims, rules, and decisions of doctrine, which have been sifted by the constant practice, and the collision, consequent upon judicial debates. These rules and maxims have been incessantly increasing the store of wisdom and knowledge thus acquired, until they have become the supplement of legislation in the establishment of law, and are regarded as the highest attainment towards the perfection of human reason, in the exposition of law.
The judicial power established to declare and apply the laws, needs, and is greatly aided, by such a fund of rules and maxims. These maxims apply equally to all men. They regard men in the aggregate, never as individuals. They are rules as proper to be known to the legislator, as to the magistrate, though their duties are variant. The science of the legislator, and his consequent duty, consists in searching in each case for principles most favorable to the common welfare; that of the judge, is to put these principles in action; to extend them by a wise and thoughtful application to private assumptions; and to study the spirit of the law, when perhaps, the letter destroys.
Perhaps no wiser man than Lord Bacon, ever graced the legal profession. In the exercise of his wisdom, he left a collection of legal maxims for study, to those who should come after him. His reasons for making the collection are so profound, it may be of advantage for all to study them. We have adopted his reasons. He says: “having, from the beginning, come to the study of the laws of this realm, with a mind and desire no less that the same laws should be the better by my industry, than that myself