Page:EB1911 - Volume 25.djvu/835

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813
STATUTE

rather than by the year of the reign. 8 & 9 Vict. c. 113, s. 3, makes evidence the king's printers' copies of private and local and personal acts. A private act not printed by the king's printers is proved by an examined copy of the parliament roll.

A public act binds all subjects of the realm, and need not be pleaded (except where the law from motives of policy specially provides for pleading certain acts, as in the defences of not guilty by statute, the Statute of Frauds and the Statute of Limitations). A private act must generally be pleaded, and does not as a rule bind strangers to its provisions. Formerly an act took effect from the first day of the session in which it was passed. The hardship caused by this technical rule has been obviated by 33 Geo. III. c. 13, by which an act takes effect from the day on which it receives the royal assent, where no other date is named. This has been held to mean the beginning of the day, so as to govern all matters occurring on that day. An act cannot in the strict theory of English law become obsolete by disuse. Nothing short of repeal can limit its operation. The law has, however, been interpreted in many cases with somewhat less rigour. In the case of a prosecution for blasphemy in 1883 (R. v. Ramsay) Lord Coleridge said, "though the principles of law remain unchanged, yet (and it is one of the advantages of the common law) their application is to be changed with the changing circumstances of the times."[1] This would be applicable as much to the interpretation of statutes as to other parts of the common law. The title, preamble and marginal notes are strictly no part of a statute, though they may at times aid its interpretation.

Besides the fourfold division above mentioned, statutes are often classed according to their subject-matter, as perpetual and temporary, penal and beneficial, imperative and directory, enabling and disabling. Temporary acts are those which expire at a date fixed in the act itself. Thus the Army Act is passed annually and continues for a year; the Ballot Act 1872 expired at the end of 1880, and the Regulation of Railways Act 1873 at the end of five years. By means of these temporary acts experimental legislation is rendered possible in many cases where the success of a new departure in legislation is doubtful. In every session an Expiring Laws Continuance Act is passed for the purpose of continuing (generally for a year) a considerable number of these temporary acts. By 48 Geo. III. c. 106 a continuing act is to take effect from the date of the expiration of a temporary act, where a bill for continuing the temporary act is in parliament, even though it be not actually passed before the date of the expiration. Penal acts are those which impose a new disability; beneficial, those which confer a new favour. An imperative statute (often negative or prohibitory in its terms) makes a certain act or omission absolutely necessary, and subjects a contravention of its provisions to a penalty. A directory statute (generally affirmative in its terms) recommends a certain act or omission, but imposes no penalty on nonobservance of its provisions. To determine whether an act is imperative or directory the act itself must be looked at, and many nice questions have arisen on the application of the rule of law to a particular case. Enabling statutes are those which enlarge the common law, while disabling statutes restrict it. This division is to some extent coincident with that into beneficial and penal. Declaratory statutes, or those simply in affirmance of the common law, were at one period not uncommon, but they are now practically unknown. The Treason Act 1351 is an example of such a statute. Statutes are sometimes passed in order to overrule specific decisions of the courts. Examples are the Factors Act 1877, the Territorial Waters Jurisdiction Act 1878, the Married Women's Property Act 1893, the Trade Disputes Act 1906.

The construction or interpretation of statutes depends partly on the common law, partly on statute. The main rules of the common law, as gathered from the best authorities, are these: (1) Statutes are to be construed, not according to their mere letter; but according to the intent and object with which they were made. (2) The relation of the statute to the common law is to be considered. In the words of the resolution of the Court of Exchequer in Heydon's case, 3 Coke's Rep. 7, the points for consideration are: “(a) What was the common law before the making of the act ? (b) What was the mischief and defect against which the common law did not provide? (c) What remedy the parliament hath resolved and appointed to cure the disease of the Commonwealth? (d) The true reason of the remedy.” (3) Beneficial or remedial statutes are to be liberally, penal more strictly, construed. (4) Other statutes in pari materia are to be taken into consideration. (5) A statute which treats of persons of inferior rank cannot by general words be extended to those of superior rank. (6) A statute does not bind the Crown, unless it be named therein. (7) Where the provision of a statute is general, everything necessary to make such provision effectual is implied. (8) A later statute repeals an earlier, as far as the two are repugnant, but if they may stand together repeal will not be presumed. (9) There is a presumption against creation of new or ousting of existing jurisdictions, against impairing obligations, against retrospective effect, against violation of international law, against monopolies, and in general against what is inconvenient or unreasonable. (to) If a statute inflicts a penalty, the penalty implies a prohibition of the act or omission to which the penalty is imposed. Whether the remedy given by statute is the only one depends on the words of the particular act. In some cases an action or an indictment will lie; in others the statutory remedy, generally summary, takes the place of the common law remedy. In some instances the courts have construed the imposition of a penalty as operating not to invalidate a contract but to create a tax upon non-compliance with the terms of the statute. The Interpretation Act 1889 provides an authentic interpretation for numerous words and phrases of frequent occurrence in statutes. In addition to these general provisions most statutes contain an interpretation clause or interpretation clauses dealing with special words or phrases. A very detailed example is s. 742 of the Merchant Shipping Act 1894.

The earlier acts are generally simple in character and language, and comparatively few in number. At present the number passed every session is enormous; in the session of 1906 it was 58 general and 212 local and personal acts, the former being under the average. Without going as far as to concede with an eminent legal authority that of such legislation three-fourths is unnecessary and the other fourth mischievous, it may be admitted that the immense library of the statutes would be but a trackless desert without trustworthy guides. Revision of the statutes was evidently regarded by the legislature as desirable as early as 1563 (see the preamble to 5 Eliz. c. 4). It was demanded by a petition of the Commons in 1610. Both Coke and Bacon were employed for some time on a commission for revision. In 1861 was passed the first of a long series of Statute Law Revision Acts. The most important action, however, was the nomination of a revision committee by Lord Chancellor Cairns in 1868, the practical result of which has been the issue of an edition of the Revised Statutes in eighteen volumes, bringing the revision of statute law down to 1886. This edition is of course subject to the disadvantage that it becomes less accurate every year as new legislation appears. A Chronological Table and Index of the Statutes which are still law is published from time to time by the council of law reporting.

The chief editions of the British statutes are the Statutes of the Realm printed by the king's printers, Ruff head's and the fine folio edition issued from 1810 to 1824 in pursuance of an address from the House of Commons to George III.

Authorities.—The safest authority is of course the Revised Statutes. Chitty's collection of Statutes of Practical Utility is a useful compilation. Among the earlier works on statute law may be mentioned the readings and commentaries on statutes by great lawyers, such as the second volume of Coke's Institutes, Bacon's Reading on the Statute of Uses, Barrington's Observations on the more ancient Statutes from Magna Carta to the 21 Jac. I. c. 27 (5th ed., 1796), and the Introduction to Blackstone's Commentaries. Among the later works are the treatises of Dwarris (2nd ed., 1848) and Sir P. B. Maxwell (3rd ed., 1905) and Hardcastle (3rd ed., 1901). On the interpretation of statutes, see Lord Farnborough, The Machinery of Parliamentary Legislation (1881); Sir C. P. Ilbert, Legislative Methods and Forms (1901); Sir H. Thring, Practical Legislation, or the Composition and Language of Acts of Parliament (1902).

Scotland.
The statutes of the Scottish parliament before the union differed from the English statutes in two important respects: they were passed by the estates of the kingdom sitting together and not in separate houses, and from 1367 to 1690 they were discussed only after preliminary consideration by the lords of the articles.[2] An act

  1. This opinion carries out to a certain extent the view of Locke, who in article 79 of his Carolina Code recommended the determination of acts of the legislature by effluxion of time after a hundred years from their enactment.
  2. The Scottish parliament from an early date discharged its functions by the aid of two committees known as the legislative and judicial committees. The legislative committee were termed lords of the articles and existed until 1688. The judicial committee were called lords auditors.