actus Parliamenti, came to be at once brought into the house.* The established form of the commencement of a statute in England, now is: "Be it enacted by the King's Most Excellent, Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, that," &c. The enacting clause of the laws of the American Union, runs thus: "Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled." The enacting clause in the States differs with their different organization. In New York, it runs thus: "The People of the State of New York, represented in Senate and Assembly, do enact as follows." The Preamble.-Both in England and this country, it was at one time a common practice to prefix to each law a preface, prologue, or preamble, stating the motives and inducements to the making of it; but it is not an essential part of the statute, and is now frequently, if not generally, omitted. With the civilians, the preamble is a matter of much consequence. They say, Cessante legis proœmio, cessat et ipsa lex. In our law it holds a far lower rank. A preamble is not only not essential and often, now indeed generally, omitted, but it is without force in a legislative sense, being but a guide to the intentions of the framer. Still, as such guide, it is often of importance. It is in this sense that, as Lord Coke and Lord. Bacon say, the preamble is a key to open the understanding of a statute. "The influence of the preamble," says Mr. Justice * Dwarris, p. 503. Story, in his Commentaries on the Constitution of the United States, "has a foundation in the exposition of every code of written law, upon the universal principle of interpretation, that the will and intention of the Legislature is to be regarded and followed. The preamble is properly referred to when doubts or ambignities arise upon the words of the enacting part. The preamble can never enlarge, it cannot confer any powers per se. Its true office is to expound powers conferred, not substantially to create them."* "The preamble to a statute," say the Supreme Court in Illinois, "is no part of the act, still it may assist in ascertaining the true intent and meaning of the Legislature."+ In the modern English cases, it is said that the preamble may be used to ascertain and fix the subject matter to which the enacting part is to be applied.† So, the purview or body of the act may even be restrained by the preamble, when no inconsistency or contradiction results.§ But it is well settled that where the intention of the Legislature is clearly expressed in the purview, the preamble shall not restrain it, although it be of much narrower import. "If the words of this section," says Lord Campbell, C. J., in a * See, to same effect, Crespigny vs. Wittenoom, 4 T. R., 193; Edwards vs. Pope, 3 Scam. 465. Edwards vs. Pope, 3 Scam. 465. Salkeld vs. Johnson, 1 Hare, 196; Emanuel vs. Constable, 3 Russel, 436; Foster vs. Banbury, 3 Sim. 40; Crespigny vs. Wittenoom, 4 T. R. 193. § Seidenbender vs. Charles, 4 S. and R. 166; Kent vs. Somerville, 7 Gill and J. 266. | King vs. Marks, 3 East. 165; Kinaston vs. Clarke, 2 Atk. 205; Holbrook vs. Holbrook, 1 Pick. 251; Copeman vs. Gallant, 1 P. Wm. R. 320; King vs. Athos, 8 Mod. 144; Kent vs. Somerville, 7 Gill and J. 265; Lees vs. Somersgill, 17 Ves. 510. recent case, "admitted of any reasonable doubt, we would look to the title and preamble, and endeavor to construe the enactments consistently with them."* So, if a clear and definite remedy is given by the act, the preamble cannot be used to introduce one more extensive.† A question has arisen as to the effect of the preamble as matter of evidence; or, in other words, whether the allegation by the Legislature in the preamble of a statute, of the existence of certain facts, can be offered as evidence of these facts in courts of justice, when private rights come in question. On this point it has been held in England, where an information for a libel contained an introductory averment that great outrages had been committed in certain parts of the country, that the preamble of an act of Parlia ment reciting the existence of outrages of that description, was admissible for the purpose of proving the averment. This decision, however, gives more weight to the preamble than would probably be allowed to it in this country. The court of Kentucky, on the question, whether the preamble of a private statute could be used as evidence of the matters recited in it, said, "The fact recited in the preamble of a private statute may be evidence between the commonwealth and the applicant or party for whose benefit the act was passed. But as between the applicant and another individual whose rights are affected, the facts recited ought not * Wilmot vs. Rose, 3 Ellis and Blackburn, Q. B. 563; Free vs. Burgoyne, 5 B. and C. 400. + Wilson vs. Knubley, 7 East. 128, Bac. Abr. Stat. 1; Adams vs. Wood, 2 Cranch, 336. Rex vs. Sutton, 4 Maule and Sel. 532. to be evidence. We well know that such applications are made frequently ex parte. The Legislature, in all its inquiring forms by committees, makes no issue. Once adopt the principle that such facts are conclusive, or even prima facie, evidence against private rights, and many individual controversies may be prejudged, and drawn from the sanctions of the judiciary into the vortex of legislative usurpation. The appropriate functions of the legislature are to make laws to operate on future incidents, and not a decision or forestalling of rights accrued or vested under previous laws. Such a preamble is evidence that the facts were so represented to the legislature, and not that they are really true."* This reasoning applies with as much force to public as to private statutes; and the Supreme Court of New York has well said that the legislature has no jurisdiction to determine facts touching the rights of individuals.+ A preamble is sometimes prefixed to a particular clause, the tenor of which it is meant to explain or which it is intended to elucidate.t The Purview, or Body of the Act.-The true meaning of the statute is generally to be sought in the purview, providing part or body, of the act. As we have seen, it is well settled that when the words in this part are broad enough to take in the mischief * Elmendorf vs. Carmichael, 4 Litt. R. 47. † Parmlee vs. Thompson, 2 Hill, 77. Mr. Barrington, in his Observations on the Ancient Statutes, a rambling, but shrewd, sensible, and learned work, manifests considerable hostility to preambles. He says, "The most common recital for the introduction of any new regulation, is to set forth that 'doubts have arisen at common law' which frequently never existed." And again, with great truth, "the preamble often dwells upon a pretense which was not the real occasion of the law, when perhaps the proposer had very different views in contemplation."-Obs, on Stat. p. 394. alleged to be included, they shall be so construed though the preamble does not warrant it; in other words, the purview of the statute may carry the act beyond the preamble. "There are a variety of cases," said Lord Mansfield, "where it has been determined that strong words in the enacting part of a statute, may extend beyond the preamble.* This, then, seems to be the general principle. The title may be resorted to in cases of ambiguity, and is a guide of some, though slight, value. The preamble may be consulted to ascertain the intention of the lawmaking power. But it is chiefly from the main body, the purview of the act, that the will of the legislature is to be learned; and when this is clear and express, neither preamble nor title will avail to contradict or overrule it. Absoluta sententia expositore non indiget. "This is the case," says Lord Coke, "where the words are plain without any scruple, and absolute without any saving." We shall discuss other branches of this part of our subject, when we come to examine the rules of interpretation. Clauses. Of these in bills, there are various kinds. Bills frequently contain an interpretation clause; and this clause, says Mr. Dwarris, should precede the mere body of the act, since, as he says, agreeably to right reason and common sense, definitions should precede the matter to which they have reference. In America, however, the interpretation clause, where it occurs, is generally to be found at the end of the statute. The practical use of the interpretation clause will * Dwarris p. 507; Strode vs. The Stafford Justices, 1 Brock, 162; 3 Atk. 204; Pattison vs. Bankes, Cowper, 540; Doe dem. Bywater & Brandling, 7 B. and C. 643. † 2 Inst. 533; Dwarris, p. 519. |