and shown in proof, by the party claiming the effect of them. In England the existence even of a private statute cannot be put in issue to be tried by a jury on the plea of nul tiel record, though this may be done in New York under the Revised Statutes. (a)

Rules for the interpre

.

The title of the Act and the preamble to the Act are, strictly speaking, no parts of it. (b) They may serve to tation of show the general scope and purport of the Act, and statutes. the inducements which led to its enactment. They may, at times, aid in the construction of it; (c) but generally they are loosely and carelessly inserted, and are not safe expositors of the law. The title frequently alludes to the subjectmatter of the Act only in general or sweeping terms, or it alludes only to a part of the multifarious matter of which the statute is composed. The constitution of New Jersey, in 1844, has added a new and salutary check to multitudinous matter, by declaring (d) that every law shall embrace but one object, and that shall be expressed in the title. So also in New York, by the revised constitution of 1846, art. 3, sec. 16, no private or local bill shall embrace more than one subject, and that shall be expressed in the title.2 The title, as it was observed in United States v. Fisher, (e) when taken in connection with other parts, may assist in removing ambiguities where the 461 intent is not plain; for when the mind labors to discover the intention of the legislature, it seizes everything, even the title, from which aid can be derived. So the preamble may be

(a) Dwarris on Statutes, 520. Trotter v. Mills, 6 Wendell, 512.

(b) The King v. Williams, 1 W. Blacks. Rep. 95. Mills v. Wilkins, 6 Mod. 62. (c) Sutton's Hospital, 10 Co. 23, 24, b. Boulton v. Bull, 2 H. Blacks. 465, 500. (d) Art. 4, sec. 7. (e) 2 Cranch, 386.

1 Ogden v. Strong, 2 Paine, C. C. 584.

2 The constitutions of Ohio, Missouri, Iowa, Indiana, Michigan, Georgia, and other states, contain a similar provision. It has been decided, in the latter state, that so much only of every statute as contains matter different from what is expressed in the titie will be void. Mayor of Savannah v. State, 4 Geo. 26. The purpose of the requirement is, that neither the legislature nor the public may be misled by the title; and statutes are to be reasonably construed with a reference to this intent. Sun Mutual Ins. Co. v. Mayor, 4 Seld. 241; Guilford v. Cornell, 18 Barb, 615, 640; Conner v. Mayor, 1 Seld. 285; Davis v. State, 7 Maryl. 151; Belleville R. R. Co. v. Gregory, 15 Ill. 20.

resorted to in order to ascertain the inducements to the making of the statute; but when the words of the enacting clause are clear and positive, recourse must not be had to the preamble. Notwithstanding that Lord Coke (a) considers the preamble as a key to open the understanding of the statute, Mr. Barrington, in his Observations on the Statutes, (b) has shown by many instances, that a statute frequently recites that which is not the real occasion of the law, or states that doubts existed as to the law, when in fact, none had existed. The true rule is, as was declared by Mr. J. Buller and Mr. J. Grose, in Crespigny v. Wittenoom (c) that the preamble may be resorted to in restraint of the generality of the enacting clause, when it would be inconvenient if not restrained, or it may be resorted to in expla nation of the enacting clause, if it be doubtful. This is the whole extent of the influence of the title and preamble in the construction of the statute.1 The true meaning of the statute is generally and properly to be sought from the body of the Act itself. But such is the imperfection of human language, and the want of technical skill in the makers of the law, that statutes often give occasion to the most perplexing and distressing doubts and discussions, arising from the ambiguity that attends them. It requires great experience, as well as the command of a perspicuous diction, to frame a law in such clear and precise terms as to secure it from ambiguous expressions, and from all doubt and criticisms upon its meaning.

It is an established rule in the exposition of statutes, that the intention of the lawgiver is to be deduced from a view of the whole, and of every part of a statute, taken and * compared together. (d) The real intention, when accurately ascertained, will always prevail over the literal sense of terms. (e) When the expression in a statute is special

* 462

(a) Co. Litt. 79, a.

(b) P. 300.

(c) 4 Term Rep. 793. (d) Co. Litt. 381, a. Marshall, Ch. J., 12 Wheaton, 332. Mason v. Finch, 2 Scammon's Ill. R. 224.

(e) Thompson, Ch. J., in The People v. Utica Ins. Co. 15 Johnson, 380. Whitney v. Whitney, 14 Mass. R. 92.

1 The value of the preamble as an aid in construing a treaty, is considered in Little v. Watson, 32 Maine R. 214. Its averments are to be regarded as admitted truths.

or particular, but the reason is general, the expression should be deemed general. (a) Scire leges, non hoc est verba earum tenere sed vim ac potestatem, and the reason and intention of the lawgiver will control the strict letter of the law, when the latter would lead to palpable injustice, contradiction, and absurdity. This was the doctrine of Modestinus, Scævola, Paulus, and Ulpianus, the most illustrious commentators on the Roman law. (b) When the words are not explicit, the intention is to be collected from the context, from the occasion and necessity of the law, from the mischief felt, and the objects and the remedy in view; and the intention is to be taken or presumed, according to what is consonant to reason and good discretion. (c)1 These rules, by which the sages of the law, according to Plowden, (d) have ever been guided in seeking for the intention of the legislature, are maxims of sound interpretation, which have been accumulated by the experience, and ratified by the approbation of ages.

The words of a statute, if of common use, are to be taken in their natural, plain, obvious, and ordinary signification and import; (e) and if technical words are used, they are to be taken in a technical sense, unless it clearly appears from the context, or other parts of the instrument, that the words were intended to be applied differently from their ordinary or their legal acceptation. (f) The current of authority at the present day, said Mr. Justice Bronson, (g) is in favor of reading stat

(a) 10 Co. 101, b.

(b) Dig. 1, 3, 17. Ibid. lib. 27, 1, 13, 2. Maledicta interpretatio quæ corrodit visLord Coke.

cera texti.

(c) 10 Co. 57, b. 3 Co. 7. Plowd. 10, 57, 350, 363. Eyre, Ch. J., in Boulton v. Bull, 2 H. Blacks. 490. Marshall, Ch. J., 9 Wheaton, 189.

(d) Plowd. 205.

(e) Story, J., 1 Wheaton, 326. Lord Tenterden, 2 B. & Ald. 522.

(f) Certainty to a certain intent in general, is ordinarily sufficient in the construction of statutes. The words are to be taken in the sense, say the judges in Vermont, that would convey the meaning required, to all men of ordinary discernment alike, and that may be called certain without recurring to possible facts which do not appear. Fairlee v. Corinth, 9 Vermont Rep. 269.

(g) 20 Wendell, 561. In Mallan v. May, 13 Meeson & Welsby, 511, the ordinary

1 See Barker v. Esty, 19 Vermont R. 131.

utes according to the natural and most obvious import of the language, without resorting to subtle and forced constructions, for the purpose of either limiting or extending their operation.1 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. (a) Lord Coke, in Alton Wood's case, (b) gives a particular illustration of this rule, by a case which would be false doctrine with us, but which serves to show the force of the rule. Thus, if the manor of Dale be by express words given by statute to the king, saving the right of all persons interested therein, or if the statute vests the lands of A in the king, saving the *463 rights of A, the interest of the owner is not saved, inasmuch as the saving clause is repugnant to the grant; and if it were allowed to operate, it would render the grant void and nugatory. But there is a distinction in some of the books between a saving clause and a proviso in the statute, though the reason of the distinction is not very apparent. It was held by all the barons of the Exchequer, in the case of The Attorney-General v. The Governor and Company of Chelsea Waterworks, (c) that where the proviso of an Act of Parlia ment was directly repugnant to the purview of it, the proviso should stand, and be held a repeal of the purview, because it speaks the last intention of the lawgiver. It was compared to a will, in which the latter part, if inconsistent with the former,

rule of construction was declared to be, that words were to be construed according to their strict and primary acceptation, unless from the context of the instrument, and the intention of the parties, to be collected from it, they appear to be used in a different sense, or unless in their strict sense they are incapable of being carried into effect. (a) Plowd. 565.

8 Taunt. Rep. 13-18.
(c) Fitz. Rep. 195. 4 Geo. II.

(b) 1 Co. 47, a.

1 "It is a rule, (says Burton, J.,) in the construction of statutes, that in the first instance, the grammatical sense of the words is to be adhered to. If that is contrary to, or inconsistent with any expressed intention, or any declared purpose of the statute, or, if it would involve any absurdity, repugnance, or inconsistency in its different provisions, the grammatical sense must then be modified, extended, or abridged, so far as to avoid such an inconvenience, but no further." Warburton v. Loveland, 1 Hud. & Brooke, (Irish,) 648. Toldervy v. Colt, 1 M. & W. 264.

2 Townsend v. Brown, 4 Zabr. 80.

supersedes and revokes it. But it may be remarked upon this case of Fitzgibbon, that a proviso repugnant to the purview of the statute, 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. (a) There is also a technical distinction between a proviso and an exception in a statute. If there be an exception in the enacting clause of a statute, it must be negatived in pleading; but if there be a separate proviso, that need not, and the defendant must show it by way of defence. (b) 1

1

Several Acts in pari materia, and relating to the same subject, are to be taken together, and compared, in the construction of them, because they are considered as having one object in view, and as acting upon one system. This rule was declared in the cases of Rex v. Loxdale, and the Earl of Ailesbury v. Pattison; (c) and the rule applies, though some of the statutes may have expired, or are not referred to in the other Acts. The object of the rule is to ascertain and carry into effect the

(a) In Savings Institution v. Makin, 23 Maine R. 360, it was held, in the case which led to a great and able discussion, 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, saving clause, and proviso, taken and construed together, are to prevail. If the principal 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.

(b) Spieres v. Parker, 1 Term, 141. Abbot, J., 1 Barnew. & Ald. 99. Thibault v. Gibson, 12 Meeson & Welsby, 88. Id. 740. The office of a proviso is either to except something from the enacting clause, or to qualify or restrain its generality, or to exclude some possible ground of misinterpretation of its extent. Story, J., Minis v. United States, 15 Peters's U. S. R. 445. Boon v. Juliet, 1 Scammon's Ill. R. 258.2

(c) 1 Burr. Rep. 445. Doug. Rep. 28. See, also, Vernon's case, 4 Co. 4. 4 Term R. 447, 450. 5 Ib. 417. son, 380, S. P.

Dwarris on Statutes, 569. Thompson, Ch. J., 15, John

1 People v. Toynbee, 2 Park. C. R. 329, 354. Brutton v. State, 4 Ind. 602.

2 In construing statutes, a proviso may be limited to the general scope of the enacting clause to avoid repugnancy. 19 Vermont R. 129.