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eration of nature or blood should be good consideration within the proviso, the statute would serve for little or nothing, and no creditor would be sure of his debt.”
So, "where one indicted for recusancy, and having the intent to flee beyond sea, made a gift, &c.," it was held within this act; “ the words to defraud creditors and others of their” (inter alia) “ forfeitures," extending to those "who had cause of action or suit,” or “where anything shall by law be forfeit to the king or subject.”
Again, in an obligation void by 5 Edw. 6, c. 16, was a lawful covenant for repayment of money in a certain case : held, that "if the addition of a lawful covenant should make the obligation of force, even as to that,—the statute would serve for little or no purpose;" for this cause it was adjudged that the obligation was utterly void. a
It should seem that a statute for the discharge of insolvent debtors ought to be construed strictly, quoad the cessio bonorum and the rights of creditors, because it gives away the property of the subject. “Let a statute be ever so charitable,” said Holt, c. J., “ If it give away the property of the subject, it ought to be construed strictly."
It has been already stated, that a statute may be penal in one part, and remedial in another part.c There is no impropriety, it remains to be observed, in putting a strict construction on a penal clause, and a liberal construction on a remedial clause, in the same act of parliament. This has been done on the statutes which make it a felony to burn houses and other property, and give those who suffer from the felony, a remedy against the hundred. So, the 23d section of the stat. 11 Geo. 2, c. 19, authorizing the sheriff to grant replevins on taking bonds, in every replevin of a distress for rent, is remedial, and shall be construed liberally, though the 22d section is penal, and has been construed strictly. d
Statutes, though penal, have been “taken by intendment," to the end that they should not be illusory, but should take effect according to the express intention of the makers of the act. Thus, by the stat. 25 Edw. 3, the killing of a master is made treason, and it extends by construction as has been shown, to the mistress. e The stat. 3 Hen. 7, c. 1, is, that the wife or heir of him so slain, shall have the appeal; the heir of a woman who was murdered shall have the appeal; for apices juris non sunt jura.
The letter of the law has now been largely treated, and its spirit copiously discussed, further it is indispensably necessary in the construction of statutes, to have regard to their provisions; to see of what they treat; the quid as well as the quo modo. For a a Twyne's case, 3 Rep. 83.
6 12 Mod. 513. c Dougl. 702.
d Short v. Hubbard, 2 Bing. 355. e Poulter's case, 11 Rep. 34.
f 4 Rep. 4.
statute which treats of things or persons of an inferior rank cannot, by any general words, be extended to those of a superior. Thus, an old statute treating of "abbots, priors, hospitallers, &c.,"a and a later act speaking of "deans, prebendaries, parsons, vicars, and others having spiritual promotion," have been respectively held not to extend to bishops;-abbots and deans being the highest persons named, and bishops being of a still higher order. b So where, in 2 Westm. cap. 47, "for the protection of the salmon fishery in the Humber, Ouse, Trent, &c.," Thamesis—“ nobile illud flumen" is not named; though there be the general words "et omnes alice aquæ in regno in quibus salmones capiuntur;"-the Thames, therefore, is added by another act, and in the first place. c
Yet, where in the articuli cleri, it was complained, (cap. ix.) "that the king's officers did some time take the parson's beasts in the king's highway;" and the words were animalia rectorum, this law extended to abbots, priors, and the like. But this is not inconsistent with the received and familiar doctrine; for the words persona ecclesiastica afterwards occurring in the act, "parsons" were considered as being here named, for example.
But in the stat. of Marlbridge, cap. 19, a provision is made "touching essoigns in counties, hundreds, or in courts baron, or in other courts;" and here, "although the act beginneth with inferior courts, contrary to rules, (as is known by common experience,) the general words vel in aliis curiis are interpreted to extend to the king's courts of record at Westminster, and other courts of record. And the cause is, for that otherwise, these general words should be void; for it cannot, according to the general rule, extend to inferior courts, for none be more inferior or lower than these that be particularly named; and so note a just exception out of the general rule." d
It is only repeated here, on account of its relation to the maxim under discussion, that where general words follow particular ones, the rule is to construe them as applicable to persons ejusdem generis. "Considering then," says Lord Tenterden, " in Sandiman v. Breach, e that in the 3 Car. 1, c. 1, (passed to prevent traveling on the Lord's day,) carriers of a certain description are mentioned, and that in the 29 Car. 2, c. 7, drovers, horse-coursers, waggoners and travelers of certain descriptions are specifically mentioned, we think that the words 'other person or persons,' cannot have been used in a sense large enough to include the owner and driver of a stage coach."
Such are the principal rules relating to the construction of statutes; a few others may perhaps remain unnoticed, of minor
importance. * It is doubtless very desirable that statutes should be framed in such clear and precise terms, as to secure them from all ambiguity, and from all doubts and criticism as to their meaning. But it is to be feared, that, from the habits of legislators and the imperfections of language, such an event is quite hopeless, and the attempt impracticable. It is, unquestionably, often owing to the want of technical skill in the makers of the law, that statutes give rise to such distressing doubts, from the ambiguity that attends them. Great experience and learning are, however, it ought to be remembered, no less requisite for the interpretation, than for the preparation of laws. "It would be quite visionary," says the sensible and candid commentator on the laws of the United States of America, “ to expect in any code of statute law, such precision of thought and perspicuity of language, as to preclude all uncertainty as to the meaning, and exempt the community from the evils of vexatious doubts and litigious interpretations. Various and discordant readings, glosses and commentaries, will inevitably arise in the progress of time, and perhaps as often from the want of skill and talent in those who comment, as in those who make the laws." a
a Kent's Comm. Vol, 1, 450. * As that entries make good interpreters: “judicial precedents, and the right entries of pleas are good interpretations of statutes." Dictum por Lord Coke, 3 Inst. 380.
PARTICULAR RULES OF CONSTRUCTION APPLICABLE TO DISTINCT
PARTS OF STATUTES: TITLE, PREAMBLE, CLAUSES, PROVISOS: JUDICIAL OR AUTHORITATIVE EXPOSITION OF THE MEANING OF PARTICULAR WORDS OR PASSAGES TO BE FOUND IN ACTS OF PARLIAMENT.
The comprehensive manner in which the several subjects of the classification of statutes; the analysis of statutes and the rules for their construction, have been treated in the preceding, chapters, has necessarily anticipated much of what occurred to be said on the subject of the particular rules of interpretation applicable to distinct parts of acts of parliament. Examples may yet be afforded of the degree of influence which the title or preamble ought to exercise over the enacting clause, or one clause over another clause, or general words over special provisions in an act: but as regards either leading principles or established maxims, little curious or useful remains to be added. It is proposed, however, to proceed to a succinct statement, or brief recapitulation, of the rules of exposition affecting the constituent parts of acts of parliament.
The style and title, it will be remembered, is no parcel of the act; but the object of an act is often avowed in the title, as well as in the preamble. Yet though the title of an act may occasionally shed light on the former law and the contemplated changes, it is really in itself, without legislative import.
The preamble states, with more or less accuracy, the object of a law and the occasion of its making. Its first legitimate and unquestioned use, is to ascertain, what the cases are, to which the act was intended to apply. It has never been disputed, that the preamble to an act, may be properly used, to ascertain and fix the subject matter to which the enacting part is to be applied. a'
It is, at the same time, incontrovertible, that, if the enacting words can be shown to go beyond the preamble, (and that they may be justifiably carried beyond the preamble, there is no manner of doubt; if the words be seen to embrace any other case within the mischief sought to be remedied,) effect must be given to such larger words. And a contrary construction is declared to be unfounded, mischievous and dangerous. a
a Fellowes v. Clay, 4 Q. B. R. 339. Salked v. Johnson, 1 Hare 196, and the
numerous cases there cited.
NOTE 1.-The reason why a preamble may be referred to, to determine the reason and intent of the legislature when the language is ambiguous, is, that it states the reasons and objects of the law. U. 8. v. Webster, Davies 38. If the reasons appear in any other equally solemn document it may also be resorted to. id.
The doctrine received with the greatest difficulty, and which occasioned the strongest controversy in Westminster Hall, is, the the proposition, that the preamble, may be sometimes used, to control and cut down the enacting part. This use of the preamble to an act of parliament, to restrain the operation of its enacting clauses in their application to cases within the act, formerly led to much difference of opinion, and is approached with great caution by modern judges. Lord Tenterden, in the case of Halton v. Cave warily pronounced the legal doctrine upon this subject in the following terms:-“The enacting words of an act of parliament, are not always to be limited by the words of the preamble, but must, in many instances go beyond it. Yet the words in the enacting part, must be confined to that, which is the plain object and general intention of the legislature in passing the act; and the preamble affords a good clue to discover what that object was.” b
Perhaps, in the history of American jurisprudence and of American fundamental law, there is no single paragraph that possesses more profound significance, in the expression of the object and intent of the instrument, and of its framers, than that of the preamble to the federal constitution. The highest judicial authority ever accords to it a significance becoming an instrument which was laying the deep foundations of a national government for American empire which should rest on the solid basis of the will of an intelligent and a free people; the highest original source of all legitimate earthly authority.
This preamble expresses the whole spirit of the instrument; and while it is never resorted to to enlarge the powers confided to the general government, or to any of its departments; and though it confers no power, per se, it has ever been referred to, and has been used for the purpose, as its true office would seem to be, to expound and express the nature, extent, and application of the powers conferred in the constitution itself.
Its whole history assures us, that this preamble was not adopted as a mere formulary; but as the most solemn promulgation of fundamental facts, vital to the character and future operations of
a Por Lord Denman, ante, p. 505, and per Lord Ellenborough in R. v. Marks, 604.
61 B. & A, 538.