Lapas attēli

a government of a great people. The design of the establishment of this constitution, is concisely and beautifully, but briefly expressed; and it comprehends six distinct objects. 1st, To form a more perfect union; 2d, To establish justice; 3d, To ensure domestic tranquility; 4th, To provide for the common defence; 5th, To promote the general welfare; 6th, To secure the blessings of liberty to themselves and their posterity. Here is found condensed, the reasons which have ever had their influence upon reflecting judicial minds in giving construction to this great fundamental law, the sheet anchor of our political hopes.

1. The first proposition to be advanced is, that the preamble cannot extend the enacting clause. In support of this doctrine, the case of Wilson v. Knabley may be cited. a In that case, Lord Ellenborough said, "I agree that the grievances recited in the preamble of the act, would have led one to suppose that the legislature meant to have given a larger remedy than the action of debt, against the devisee of land, to recover damages for a breach of covenant by the devisor. But for us to extend the words to the action of covenant, would be to legislate, and not to construe the acts of the legislature." Yet in a late case, the preamble was called in aid to give a meaning to a doubtful clause; where the particular writ (Elegit,) was not expressly named in the enacting clause. b

2. The preamble cannot restrain the enacting clauses, except where the words are ambiguous; or are not sufficiently large to embrace the case; or are so large, that convenience and the policy of the law, clearly require, that their generality shall be restrained.c

Lord Coke commends such construction of an act, as makes the purview agree with the preamble; but not such, it is said in the case of the King v. Althoes, d as may limit and confine the enacting part to the preamble.

It has, it should seem, been sometimes too broadly laid down, that the generality of the enacting clause shall be restrained and qualified by the preamble. In Copeman and Gallant, e it was said by Lord Cowper, that he could by no means adopt the notion that a preamble shall restrain the operation of an enacting clause; and he added, that if the preamble of the Coventry act had only recited the barbarity of slitting Coventry's nose, and the enacting clause had been general against the doing of anything whereby a man is disfigured or defaced, it might, agreeably to that notion, have been said, that cutting off the lip, or putting out an eye,

a 7 East, 128.

b Nash v. Allen, 4 Q. B. R. 784.

c Crespigny v. Wittenoon, 4 T. R. 193, and see ante, p. 508. d 8 Mod. 144.

e 1 P. Wms. 320.

would not have been within the meaning of this statute; because neither of these is mentioned in the preamble. In Ryall v. Rowles, a Parker, Ch. Baron, said: "It is laid down in 1 Jo. 163, and Palmer 485, upon the construction of the stat. 13 Eliz. that the preamble shall not restrain the enacting clause. But I take it to be agreed, that if the not restraining the generality of the enacting clause will be attended with an inconveniency, the preamble shall restrain it. In Copeman and Gallant, I must own that Lord Chancellor Cowper exploded the notion of the preamble's governing the enacting clause, and went upon another reason. I have great honor for Lord Cowper; but though I approve of the decree, I cannot subscribe to the reasons of it."

The opinion of Lord Cowper with respect to the operation of the preamble was equally disapproved of by Lord Hardwicke. In the same case of Ryall and Rowles, b the later chancellor said: "I shall not scruple to declare that I am strongly inclined to be of opinion with Lord Holt and my lord chief baron, that this clause is to be restrained by the preamble; and differ from Lord Cowper in the case of Copeman and Gallant."

The general purview of a statute is not, however, necessarily to be restrained by any words introductory to the enacting clauses. Larger and stronger words in the enactment part of a statute may extend it beyond the preamble. c If the enacting words are plain, and sufficiently comprehensive to embrace the mischief intended to be prevented, they shall extend to it, though the preamble does not warrant the construction.d In the case of R. v. St. Peter and St. Paul, in Bath, it was contended that the construction of the certificate act was to be restrained by the preamble. Lord Mansfield said: "Whatever might be the leading motive in passing that act, that statute authorizes the whole body of the poor, of whatever denomination, and with whatever object to leave their own, and to remove into any other parish; provided they can obtain the protection of a certificate. Contrary to the spirit and policy of the act, and not obliged by the letter, the court will not make an exception of a case which the act has not itself excepted." e

In R. v. Pierce,f Lord Ellenborough said: "It cannot by any means be regarded, as an universal rule that large and comprehensive words in the enacting clause of a statute are to be restrained by the preamble. In a vast number of acts of parliament, although a particular mischief is recited in the preamble, yet the legislative provisions extend far beyond the mischief recited. And whether the words shall be restrained or not, must depend on a fair exposition of the particular statute in each particular case, and not upon any universal rule of construction." In Freeman v.

a 1 Atk. 174.

e Cowp. 543. R. v. Marks, 3 East, 160.

e 1 Bott. 443.

b Id. 182.

d 3 Atk. 203.

f 3 M. & S. 66.

Lambert, a the same powerful chief justice said: "I confess, I am not for restraining the generality of the enacting clause by the preamble, without some reason for it." And Dampier, J., said: "I have always understood it as a standing rule in the construction of acts of parliament; that the enacting clause shall not be restrained by the preamble, if the enacting words are large enough to comprehend the case." In a late case of Hughes v. Done, b Lord Denman said: "To introduce, in the enacting part, an exception not there to be found, and which, if intended might have been so easily introduced and expressed, is we think to curtail and abridge the meaning of plain words in a manner which no rule of construction warrants."

But though the preamble cannot control the enacting part of a statute, which is expressed in clear and unambiguous terms, yet, if any doubt arise on the words of the enacting part, the preamble may be resorted to, to explain it. In truth, it then resolves itself into a question of intention; or in other words, recourse is had to the primary rules of interpretation. For the words being doubtful, the preamble is compared with the rest of the act, in order to collect the intention of the legislature, whether they meant it to extend to a case like that under consideration. The preamble of the stat. 22 Geo. 2, c. 44, which was confined to mariners and soldiers, recited that mariners and soldiers of different trades, and apprentices who had not served their times, were prohibited from setting up their trades in corporate towns, &c., either by reason of by-laws therein made or of the 5th Eliz. c. 4. To remedy this inconvenience it was enacted, that all such mariners and soldiers might set up their trades, in any town, notwithstanding these disabilities. The stat. 26 Geo. 3, c. 107, referring expressly to the former statute, says, that every person having served in the militia, may set up a trade "as freely and with the same provisions," &c. It was held clear on the meaning of the acts, which were made in pari materie, and referring to the titles and preambles to discover the occasion and object of making the laws, that they related to persons exercising trades, and not to common laborers, or husbandmen. c The preamble of the annuity act recites "the pernicious practice of raising money by the sale of life annuities:" an annuity granted in consideration of the grantee's giving up his business to the grantor, was held not within the spirit or object of the act, which was intended as a check against hard bargains; the preamble stating as the occasion of the act, the mischiefs of granting annuities for small consideration by improvident persons. d

In Salkeld v. Johnson, e Wigram, V. C., said: "Courts of law have held that the mere subject-matter without any preamble, may safely be relied upon for restraining the operation of general

a 4 M. & S. 238.

c R. v. Gwenop, 3 T. R 135

e 1 Hare, 196.

b 1 Q. B. R. 301.

} Crespigny v. Wittenoon, 4 T. R. 791.

words. The stock-jobbing acts in terms are general, and would apply to transactions in foreign stock: a verbal construction which the courts have rejected, in favor of the obvious intention of the legislature to apply them only to British stocks." Henderson v. Bisc; a Wells v. Porter; b Elsworth v. Cole. c

Clauses will sometimes be governed by provisions in another section of the act. A company were incorporated by statute and empowered to make a railway through certain districts. By sect. 5 of the act, they were directed to leave sufficient space for the public to pass, or to form new roads in lieu of any existing ones that might be injured by their railway. Section 70 empowered proprietors of lands, mines, &c., to make railways through their own lands and those of other persons consenting, and across and along any road or roads to communicate with the principal railway; and no reference was made to any former limitation of powers. It was nevertheless determined that the power in this clause was not absolutely given, but must be subject to the provisions of section 5, as to the condition of leaving space enough, independent of the railways, for the public to pass. d

A railway act empowered the company to make and maintain their railway over certain lands to a specified point. Section 4 enacted, that nothing in that statute should authorize the company to enter upon, take or damage any lands without the consent of the owner and occupier. Sections 16 and 17 empowered the company to contract with landowners for the purchase of land, and for grants of way-leave. Section 18 contained a clause of arbit ration in case any person willing to grant or demise such wayleave, should not agree with the company as to terms. Section 43 enacted, that "in every case in which the said railway shall cross any other railway, the communication between them shall, if the company and the owners of such other railway do not agree about the same, be made in such manner as shall be directed by two engineers acting as arbitrators, and that the company shall make satisfaction (to be ascertained in the manner before pointed out) for temporary, permanent, or recurring injury, to be occasioned by such crossing. No regulation was made as to the manner in which, and times when, carriages on the first-mentioned railway should cross the other. The Court held that section 43 did not clearly introduce a compulsory power in the case where a railway was to be crossed, and, therefore, that the provision of section 4 must be taken to govern this clause, and make consent necessary. Although it should be impossible without so crossing, to carry the first-mentioned railway to the point specified in the act. e

a 3 Starkie, 158.

2 M. & W. 31.

b 3 Bingh. N. C. 722.

d Rex v. Morris, 1 B. & A. 441.

e The Clarence Railway Co. v. The Great North of England Junction Railway Company, 4 Q. B. R. 46.

A local act provided (in sect. 159), that if the company formed under that act, wilfully entered upon and took possession of lands without consent and without having made a required payment or deposit, they should be liable to certain specified penalties: proviso, that the company should not be liable to the penalties, if they should bona fide and without collusion, have paid or deposited the compensation; though not to the true owner. Held, by the court of exchequer, that the word "wilfully" does not override the whole of the 159th section; but applies only to the first part of it. Held further, that the section did not apply in that case, the case not being within the mischief the legislature intended to guard against. That a penal section should be strictly construed: while a proviso which has the effect of saving parties from penal enactments, should be liberally construed.

"We are all of opinion," said Pollock, C. B., "that the section cannot be read precisely as it stands. We must give it some sensible construction;" (it could not be read grammatically:) We ought so to read the 159th section as to bring the company in this instance within the protection of the proviso at the end of the section. a

"Upon all acts of parliament such construction should be made, as that one clause shall not frustate and destroy, but, on the contrary, shall explain and support, another." b In the case before cited, on the annuity act, c clauses and sections in one part of the act were made to illustrate obscure passages in another part. Thus the third and fourth clauses of the annuity act, 17 Geo. 3, c. 26 (requiring the consideration to be paid in money, or if paid in notes, and those notes afterwards not paid, empowering the court to order the annuity deeds to be cancelled,) were referred to by two of the judges, as showing the considerations contemplated by the act; as was, with a like object, the seventh section, which prohibits brokers taking more than ten shillings for every 1007. actually paid; while another judge held it apparent from the whole act, that it did not extend to a case like the one then before the court. "In cases," he said, "where money has been paid as the considerations, the courts order the money to be restored when they vacate the annuity deeds; but the business, the relinquishment of which was the consideration of this annuity, we cannot order to be restored." In the case of R. v. Cartwright, d where the question was, whether a provision in an act were general, or related only to assaults on revenue officers, qua officers: Buller, J., said, the intention might be collected from other parts of the act. "It is fair to infer that the legislature meant to extend the indemnity in the first section to all those cases in which, by the subsequent clause

a Hutchinson v. The Manchester, Bury, and Rosseldale Railway Company, Easter Term, 1846.

b Hard. 344, pl. 1. d4 T. B. 490.

c Crespigney v. Wittenoom, 4 T. R. 791.

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