Page images
PDF
EPUB

acquainted with its provisions. The rule, it will be observed, is laid down with an exception of the case where the period of commencement is otherwise fixed by the statute itself; for by force of an express provision, or even by necessary construction from the nature of the enactinent, the operation of a statute may be either postponed on the one hand, or have a retrospective relation on the other, so as to affect rights which had vested before it received the royal assent, or transactions which had before then taken place (s).

It now remains to notice the different kinds of statutes, and point out some general rules with regard to their construction.

Statutes are either general or special; that is, they are either public or private-a distinction first made in the reign of Richard III.

Public Statutes.-A general or public act is an universal rule that regards the whole community; and of this the courts of law are bound to take notice judicially and ex officio, without the statute being particularly pleaded, or formally set forth by the party who claims an advantage under it. It is in this respect that public differ from private acts, for these last must, unless there be a special clause to the contrary, be formally shown and pleaded. The distinction as to a public and private act is sometimes a question of difficulty, and it does not follow that the classification by the Queen's printer of an act as a public or a private one is conclusive (t).

It must be borne in mind that a statute may be public in one part and private in another (t). Whether an act of Parliament is to be deemed a public act, binding on all the Queen's subjects, or merely a private act, depends upon the nature and substance of the case, and not upon the technical

PRIVATE STATUTES, ETC.

23 consideration whether the act does or does not contain a clause declaring that it shall be deemed to be a public act (u). Although the words of a statute are particular, yet if the intent be general, it is a public statute; and on the contrary, if the intent be particular, it shall, notwithstanding the words are general, be deemed a private statute.

Private statutes.]-Special or private acts are rather exceptions than rules, being those which only operate upon particular persons or private concerns. Thus, a statute which concerns only a certain species of spiritual persons, as the bishops, or an individual of a certain species, as a particular bishop, is a private statute. Formerly, in many statutes which would otherwise have been deemed private acts, there was a clause by which they were declared to be public statutes; but they did not thereby derive any additional weight or authority, and were still to be construed as private acts. Now private acts are not made public, but a clause is generally inserted to the effect that they shall be printed by the Queen's printer, and that a copy so printed shall be admitted as evidence of the acts. Some private acts are local, as affecting particular places only; others personal, as confined to particular persons. Thus we have public general acts, public local and personal acts, and private local and personal acts. However, for the convenience of reference, acts are now divided by the Queen's printer into public general acts, local and personal acts declared public, private printed acts, and private acts not printed (v).

Statutes, also, are either declaratory of the common law, or remedial of some defects therein.

Declaratory statutes.]—Declaratory statutes are where the old custom of the kingdom is almost fallen into disuse or become disputable; in which case the Parliament has thought proper in perpetuum rei testimonium, and for avoiding all doubts and difficulties, to declare what the common law is.

Remedial statutes.] - Remedial statutes are those which are made to supply such defects, and abridge such superfluities in the common law as arise either from the general imperfection of all human laws, from change of time and circumstances, from the mistakes and unadvised determinations of unlearned judges, or from any other cause whatsoever.

And this being done, either by enlarging the common law where it is too narrow, or by restraining where it is too lax and luxuriant, has occasioned another subordinate division of remedial acts of Parliament into enlarging and restraining statutes, which terms sufficiently explain themselves.

Other denominations have also been given to statutes from the different manners in which they are penned, some of them being called affirmative statutes, and others negative statutes.

So, also, wherever an act of Parliament imposes a penalty or inflicts a punishment, that is called a penal statute ; and as a statute may be public as to one part, and private as to another (w), so, also, it may be remedial in one part, and penal in another.

Construction of statutes.]-The construction of acts of Parliament is founded upon this general rule: that remedial statutes are to be expounded liberally, and penal statutes are to be construed strictly. In construing an act, the judges, with whom alone the power of construing statutes resides, are to consider the old law, the mischief, the remedy, and the true reason of the remedy, that is, how the

CONSTRUCTION OF STATUTES.

25

common law stood at the making of the act; what the mischief was for which the common law did not provide ; and what remedy the Parliament hath

provided to cure this mischief; and are so to construe the act as to suppress the mischief and advance the remedy. The general rule for the construction of acts of Parliament is, that they should be construed according to the intent of the Parliament which passed the act. If the words of the statute are of themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves do, in such a case, best declare the intention of the Legislature (x).

The following seem to be the most general rules upon this subject--1. An affirmative statute does not take away the common law, and the party may make his election to proceed upon the statute or at the common law. 2. A negative statute completely takes

away the common law, so that it cannot afterwards be made use of upon the same subject (y). 3. Words and phrases, the meaning of which in a statute has been ascertained, are, when used in a subsequent statute, to be understood in the same sense. Thus, where the 23 Hen. 6 says the sheriff may take bail, the judges construed it to mean shall take bail ; and so where a person was indicted for disobeying the 14 Car. 2, c. 12, which enacts that overseers may make a rate, and an exception was taken that the act did not require them to do it, the court over-ruled the exception (2). 4. In the construction of one part of a statute, every other part ought to be taken into consideration; but the title of a statute is not to be regarded in construing it, because this is no part of the statute : the preamble, however, must be considered, for it is a key to open the minds of the makers as to the mischiefs which are

с

intended to be remedied; but this rule must not be carried so far as to restrain the general words of the enacting clause to the particular words of the preamble; although strong words in the enacting part of a statute may extend it beyond the preamble (a a). 5. A saving in a statute which is repugnant to the purview of it is void, but the purview may be qualified and restrained by the saving. It has been held that a proviso, which, on the face of the act, is not inconsistent with the other enactments of it, is not to be limited in its effect by reason of local circumstances, not apparent on the face of the act, causing such inconsistency. But such a proviso will not limit an express authority given by the act (ab). 6. If divers statutes relate to the same thing, they ought all to be taken into consideration in construing any one of them; for all statutes in pari materiâ are to be construed as one law. 7. If a statute that repeals another is itself afterwards repealed, the first statute is hereby revived, without any formal words for that purpose. 8. Acts of Parliament derogating from the power of subsequent Parliaments are not binding. 9. Acts of Parliament that are impossible to be performed are of no validity (ac); and if there arise out of them collaterally any absurd consequences, manifestly contradictory to common reason, they are, with regard to those collateral consequences, void; but when the words of a statute are doubtful, general usage may be called in to explain them.

« PreviousContinue »