probably go beyond the intention, but if they do, it rests with the legislature to make an alteration; the duty of the court is only to construe and give effect to the provisions." a An early instance of the courts giving effect to the provisions of an act, which probably went beyond the intention of the legislature, will be found in the construction put upon cap. 2 of the statute of Marlbridge; it was there enacted, that in certain cases, the distress being delivered up immediately, "non puniatur dominus per redemptionem." "This branch," says Lord Coke, "is interpreted that the lord shall pay no fine, and therefore, since this act, by a consequent, (most probably not the design of the makers,) no action of trespass vi et armis, lieth against the lord in this case; for then, he should pay a fine." b Although the intent of the legislature, is not to be collected from any particular expression, but from a general view of the whole of an act of parliament, c it is often material to attend to the collocation of words in a sentence. When words are at the beginning of a sentence, they may govern the whole d as "Nullus liber homo;"-" All widows;"-" Ensement et en meme le manere," &c. e When words are at the end of a sentence, they may refer to the whole.g Thus the words, per legem terræ, in cap. 29 of Magna Charta, being towards the end of the chapter, have been always held to refer to all the precedent matter. But if words are in the middle of a sentence,f and sensibly apply to a particular branch of it, can they be extended to that which follows? Agreeably to reason, and in grammatical construction, it should seem not; but as statutes are read without breaks and stops, it is not any time clear, that words belong to any particular branch of a sentence; it must be collected from the context, to what they relate; and they are often, as will be seen, to be read distributively-reddendo singula singulis. An expression which has precedence in the order of the words, must be taken to have been used with reference to things or persons of a higher order, or superior rank. Thus where by the London tithe act, the houses of three classes of persons are exempt, to wit, the houses of great men, (magnates), noblemen and noblewomen, (and it was no uncommon thing for the nobility to reside in the city in those days); Richards, chief baron, said, “I incline to think that the order of the words, (which is, by the rules of grammar a criterion of construction,) imports, that great men must mean persons superior in certain respects to noblemen and noblewomen, of which description there are certainly persons a Notley v. Buck, 8 B. & C. 164. c See ante, p. 573. e See post. Mag. Char. Merton. Glouc. 79 B. & C. 94. b 2 Inst. 105. d 2 Inst. 45; id. 18. in this country. This defendant, (the Dean of St. Paul's) is however, not one of either class of those privileged persons." a Though used in their plan and ordinary sense, general words may be limited by the relative word "such," to a particular description of thing contained in a preceding section. b Thus, the 4th section of the stat. 3 Geo. 4, c. 39, which requires the defeasance to a warrant of attorney to be written on the paper or parchment on which the instrument itself is written, has been twice held to apply only to such warrants of attorney as fall within the former sections of the act, and which are void against the assignees of a bankrupt, and has been consequently held not to be void between the parties. c "Always in statutes, relation shall be made according to the matter precedent." d Relative words in an act of parliament (words of reference in a subsequent statute) will make a thing pass as well as if it had been particularly expressed in the act itself; e Verba illata inesse videntur. Clauses of reference, incorporating provisions of former statutes, take effect as fully as if they had been repeated, and reenacted in the body of the latter act, with relation thereto. "It is a sound rule of construction, but applicable," said Lord Denman in a recent case, "to modern as well as to ancient statutes, (perhaps indeed more so, from necessity, in consequence of the looseness of expression which now prevails;) that in the construction of general references in acts of parliament, such reference must be made only as will stand with reason and right.'" "Where a provision is, in its original and natural application limited in respect to time and place, it is to give to general words of incorporation, a meaning contrary to reason, and it may be to justice, to hold that they apply to it." g A clause of reference in an excise statute was held to extend only to the general powers and provisions of that law, and not to every particular clause. The fair construction," said Ashurst, J., "to put upon the clause of reference in question, (which was a general clause), seems to be this:-that all the general powers and provisions given and made in acts in pari materie, shall be virtually incorporated in this, but that such provisions as are always considered as special provisions, shall not. The power of appealing from the judgment of the justices seems to be this kind, and does not attach without being expressly given. h a The Warden of St. Paul's v. the Dean, 4 Price 65. b R. v. Gwenop, 3 T. R. 135; R. v. Marks, 13 East 165; and for the effect of "such,” 2 Inst. 111; 11 Rep. 33. c Morris v. Mellor, 6 B. & C. 446. Holroyd, J. diss.; and Bennet v. Daniel, 10 B. & C.; Parke, J. diss. d 6 Rep. 76 b. e Wheatley v. Thomas, Raym. 54. h R. v. Justices of Surrey, 2 T. R. 504 ƒ 2 Inst. 287. g 6 Q. B. Rep. 343. An instance of the ill effect of the incorporation of provisions by reference to another act, may be seen in Reg. v. The Recorder of Bath, a in which case Lord Denman says: "As it seems to us hardly possible to suppose it to have been the intention of the legislature, that an individual, interested and aggrieved should not have the power of questioning the validity of a vote at the sessions, we cannot avoid noticing with regret, that recourse should have been had to the method of giving an appeal by reference to another statute, instead of giving it plainly and directly by the statute itself." See also the Queen v. Stock, b that a right of appeal cannot be implied, but must be given by express words. The rights of the crown can never be taken away by doubtful words, or ambiguous expressions, but only by express terms. Thus, a statute saying in general terms that the decision of the sessions shall be final, or that the proceedings shall not be removed by certiorari, or the like; will not take away the certiorari at the instance of the crown, unless there be some words in the act to show that the legislature intended that the crown should be barred. c If a statute prohibit contraband goods under a penalty, a subsequent statute declaring goods contraband, will draw the penalty after it. d Allusion was before made to the manner in which prior acts may be controlled (either enlarged or restrained) by subsequent acts. This doctrine may be further illustrated by the case of R. v. Gwenop.e The 22 Geo. 3, c. 44, was passed to protect soldiers, setting up trades, from incurring the penalties of the 5 Eliz. c. 4. The stat. 24 Geo. 3, c. 6, enlarging the privileges by the former act 22 Geo. 3, c. 44, declared that they should be irremovable during the time they exercised any trade. It is generally to be taken that the legislature only meant to modify or repeal the provision of any former statute, in those cases where such its objects is expressly declared. It is always to be presumed that the legislature, when it entertains an intention, will express it, and that too, in clear and explicit terms. Affirmative words, it has been already seen, do not take away the common law,-a former custom,-or a former statute. So, general words do not take away a particular benefit or privilege; as the stat. West. 2. c. 18, which gives an elegit, does not take away the privilege an infant has that he shall not be sued during his nonage, if an eligit be against the heir of a conusor being an infant./ c R. v. Allen, 15 East, 340. R. v. Inhab. of Cumberland, 6 T. R. 194; 3 B. & Words of permission shall in certain cases be obligatory. Where a statute directs the doing of a thing for the sake of justice, the word may means the same as the word shall. The stat. 23 Hen. 6, c. 10, says the sheriff, &c., may take bail; but the construction has been, that he shall be bound to take bail. So, if a statute says, that a thing may be done which is for the public benefit, it shall be construed that it must be done. Exception was taken to an indictment, (upon the stat. 14 Chas. 2, c. 12), against churchwardens and overseers, for not having made a rate to reimburse a constable, and it was urged, that the statute only puts it in their power, by the word may, to make such a rate, but does not require the doing it as a duty, for the omission of which they are punishable. The exception was not allowed; and the court held that an indictment lies against them, if they refuse it. a " 27 Sometimes words and sections are governed and explained by conjoined words or clauses: Noscitur a socio. Where of words or clauses in conjunction, one has received a natural, or a technical,— a strict or enlarged interpretation, it is often contended that the others shall be taken in a like sense. Where the words are general, and a statute is only declaratory of the common law, it shall extend to others, besides the persons or a R. v. Flockwold Inclosure Commrs., 2 Chitty 251. R. v. Barlow, Salk. 609; Vern. 154. NOTE 27.-With us, the word may, is sometimes a permissive and sometimes a directory word in the construction of a statute. May, in a statute, means must, whenever hird persons or the public have an interest in having the act done which is authorized by such permissive language. Lucas v. Ensign, 4 N. Y. Leg. Ob. 142, N. Y. Com. Pleas. It may be construed to mean shall, when the public or individuals have a claim de jure, that the power shall be exercised. Newburgh Turnpike Co. v. Miller, 5 John Ch. 113; Malcolm v. Rodgers, 5 Cow. 188. But no general rule can be laid down on this subject, further than that such exposi tion ought to be adopted as shall carry into effect the true intent and object of the enactment. The ordinary meaning of the word, which is permissive, ought to be adopted, and must be presumed to be intended, unless it would manifestly defeat the object of the provision. Miner v. Mechanics' Bank, &c., 1 Pet. 64; N. Y. & Erie R. R. Co. v. Coburn, 6 How. Pr. R. 224; Buffalo Plank Road Co. v. Commissioners of Highways, 10 How. Pr. R. 239. In this last case it was held, that if the rights and interests are not concerned, or private persons have no lawful claim or interest in the exercise of the power, the word may, by which the power was conferred, should receive its ordinary meaning, and should be construed as conferring a discretionary power upon the officer or public body. See also SuperviSo. S v. United States, 4 Wall. 435; City of Galena v. Army, 5 Wall. 705; Nave v. Nave, 7 Ind. 91; Livingston v. Lamin, 14 N. Y. R. 67; Hutson v. Mayor of New York, 9 N. Y. 169. The word shall, it has also been held, can be substituted for may, in the interpretation of a statute, when the good sense of the entire enactment requires the change. People v. Common Council of Brooklyn, 22 Barb. 40Ł things named; the stronger cases only are put, the weaker included:-thus where the king's bench only is mentioned, the provision was held to extend to the other principal courts. 28 Sometimes, on the contrary, the expressions used are restrictive, and intended to exclude all things which are not enumerated-“expressio unius est exclusio alterius." As exception strengthens the force of a law in cases not excepted, so, according to Lord Bacon, enumeration weakens it in cases not enumerated. Thus, coal-mines are rateable by the express words of the stat. 43 Eliz. c. 2; but it has been held, that, as other mines were known in the country when the statute passed, the mention of this inferior species of mine amounts to a tacit exemption or exclusion of all others, such as lead, tin, copper, iron or any other but coal mines. b Where certain specific things are taxed, or subjected to any charge, it seems probable that it was intended to exclude everything else, even of a similar nature; and a fortiori, all things different in genus and description, from those which are enumerated: as slate or lime quarries, where coal mines are named. Where a general act of parliament confers immunities which expressly exempt certain persons from the effect and operation of its provisions, it excludes all exemptions to which the subject might have been before entitled at common law. The introduction of the exemption is necessarily exclusive of all other independent, extrinsic exceptions. c The maxim is clear, "expressum facit cessare tacitum." d Affirmative specification excludes implication. Statutes also are sometimes only directory what is to be done; at other times compulsory: that is, according to their provisions discretionary or imperative. The stat. 43 Eliz. c. 2, s. 5, enacted that male apprentices should be bound out by the parish till the age of twenty-four: yet a binding till twenty-one was held to confer a settlement; for the statute is only directory, and not compulsory in this respect. e In Pearse v. Morrice, Taunton, J., said, "I understand the distinction between directory and imperative statutes to be that a a 2 Inst. 256; Stat. West. 1, cap. 46. b R. v. Cunningham, 5 East, 478. c The Warden of St. Paul's v. The Dean, 4 Price, 78. d 3 T. R. 442. e R. v. Woolstanton, 1 Bott. 610. NOTE 28. Declaratory statutes are not common, or of much expediency in this country. They were resorted to in England to revive old customs, which had fallen into disuse, or which had become disputable; sometimes to resolve doubts or difficulties, and to declare what the common law is; and sometimes to explain doubts in regard to old or modern statutes, and in these respects, parliament assumed the judicial power of giving authentic interpretation. Such powers can only be exercised here by virtue of the legislative power, which is limited; and as we have already shown, (page ), cannot act retroactively upon statutes which have had judicial interpretation from the courts, nor upon vested rights. |