written Lawes have put the court into many doubts and much trouble in many perticuler cases this Court hath therefore ordered that the freemen of every towne (or some part thereof chosen by the rest) within this iurisdiction shall assemble together in their severall townes & collect the heads of such necessary and fundamentall lawes as may bee sutable to the times and places whear God by his pvidence hath cast us, & the heads of such lawes to deliver in writing to the Governor for the time being before the 5th day of the 4th month called June next to the intent that the same Governor, together with the rest of the standing counsell and Richrd Bellingham Esq, Mr Bulkley, Mr Philips, Mr Peters, and Mr Sheopard elders of severall churches, Mr Nathaniell Ward, Mr Willi: Mr Spencer & Mr Will: Hauthorne or the maior part of them may upon the survey of suche heads of Lawes make a compendious abrigment of the same by the Generall Court in autume next adding yet to the same or detracting therefrom what in their wisdomes shall seeme meete that so the whole worke being pfected to the best of their skill it may bee psented to the Generall Court for confirmation or reiection as the Court shall adiudge."

In 1640, 13th May, it was ordered as follows:

"Whereas a breviate of Lawes was formerly sent to be considered by the Elders of the Churches and other freemen of this Commonwealth it is now desired that they will endeavour to ripen their thoughts & counsells about the same by the Generall Court in the next 8 mo :."-C. R. i, p. 292.

On the 7th October, 1641, "The Gov. & Mr. Hauthorne were desired to Speake to Mr. Ward for a Coppey of the liberties & of the Capitall lawes to bee transcribed and sent to the Generall townes."— C. R. i, p. 340.

It appears from this that the laws were still in manuscript only, and so we find (C. R. v. ii, p. 14) that on the 14th June, 1642, "Goodman Stowe is granted 100 acres of Land where he can find it convenient without piudice to any towne for recompence of his paines in writing the lawes already & to write such as are still to bee written."

On the 7th March, 1643, the subject of a modification of the laws is again considered & committed to the Govr., Mr. Dudley, Mr. Hibbens, the Magistrates residing at Ipswich and Mr. Bellingham.— C. R. ii, p. 61.

On the 14th May, 1645, the subject seems to have been more systematically taken up, and committees of six members each are raised from the respective counties of Suffolk, Middlesex, and Essex, "to consider & draw up a body of Lawes to present them to the consideration of the next General Court.-C. R. ii, p. 109.

On the 1st of October, 1645, these committees are called together at times and places designated for the accomplishment of the work, so that the Courte may pceede thereupon to satisfy ye expectation of the Country in establishing a Body of Lawes."--C. R. v. ii, p. 128.

On the 22d May, 1646, is made the following entry:

"This Corte thankfully accepts of ye labors returned by ye sevrall committees of ye sevrall sheires & being very unwiling such pcious labors should fall to ye ground without yt good successe as is genrally hoped for, have thought it meete to desire Richrd Bellingham Esqr, Mr Symonds, Leift Duncan, Leift Johnson, & Mr Ward do cause each comittees returne about a body of lawes to be transcribed, so as each comittee may have ye sight of ye others labors, and that ye psons mentioned in this order be pleased to meete together at or before ye 10th of August at Salem or Ipswich, & on their pusing & examining ye whole labors of all ye comittees, with ye abreviation of ye lawes in force, wch Mr Bellingham tooke greate store of paines & to good purpose, in and upon ye whole & make return to ye next session of this Corte, at wch time ye Cort intends, by ye favor and blessing of God, pceed to ye establishing of so many of them as shalbe thought most fit for a body of Lawes amongst us.” -C. R. vol. ii, p. 157.

On the 4th November, 1646, this entry is made:

"The Corte, being deeply sensible of ye earnest expectation of the country in genrall for this Corts compleating of a body of Lawes for ye bettr & more ordely wielding all ye affaires of this comon wealth, wiling also to their utmost to answer their honest and harty desires therein, unexpectedly p'vented by multitude of othr pressing occasions thinke fit & necessary yt this Corte make choyce of two or three of or honored magistrats, wth as many of ye deputies to puse, examine, compare, transcribe, correct, & compose in good order all ye liberties, Lawes, & orders extant with us, & furthr to puse & pfect all such othrs as are drawne up & to psent such of

them as they find necessary for us, as also to suggest what they deeme needfull to be aded, as also to consider and contriue some good methode & order, titles, & tables for compiling ye whole, so as we may have ready recourse to any of them upon all occasions, whereby we may manifest or uttr disaffection to arbitrary govermt, & so all relations be safely & sweetly directed & pfected in all their iust rights and priviledges, desireing thereby to make way for printing or Lawes for more publike & pfitable use of us and or successors. Or honored Govrnr, Mr Bellingham, Mr Hibbens, Mr Hill, & Mr Duncan, as a comittee for ye business above mentioned, or any three of them meeting, ye othr haveing notice thereof, shallbe sufficient to carry on ye worke."-C. R. vol. ii, p. 168.

On the 26th May, 1647, the court, finding that the committee for perfecting the laws have "through streights of time & other things intervening," not completed their work, commit the task to another committee.-C. R. vol. ii, p. 196.

On the 11th November, 1647, it appears that the work was done, and arrangements were made about printing.-C. R. vol. ii, p. 209.

And it is further "agreed by ye Corte to ye end We may have ye better light for making & pceeding about laws yt yr. shal be these books following pcured for yr use of ye Courte from time to time: Two of Sir Edward Cooke upon Littleton; two of ye Bookes of Entryes; two of Sir Edwd Cooke upon Magna Charta; two of ye Newe Tearmes of ye Lawe; two Dalton's Justice of Peace; two of Sir Edwd Cook's Reports."-Vol. ii, p. 212.

On the same date, it appears that the "Lawes are now in a manner agreed upon," and a committee is appointed in regard to alterations.-C. R. vol. ii, pp. 217, 218. On the 10th May, 1648 (C. R. vol. ii, p. 246), they are at presse." And on the 27th October, 1648, the price of the printed copy is fixed.-C. R. vol. ii, p. 262.

แ

I have thus traced the growth of the first body of printed laws in Massachusetts; and on the 17th October, 1649, the Court, "finding by experience the great benefit that doth redound to the Court by putting of the law in print," direct the printing of all laws passed since the first publication.-C. R. vol. ii, p. 286.

CHAPTER III.

THE PARTS OF STATUTES.

Blackstone's Enumeration of the Parts of a Statute: Practical Division.-Title.Commencement.- Preamble.- Purview.-Clauses. Provisoes.-Exceptions.Schedules.

BLACKSTONE says * that every law may be said to consist of four several parts:

The Declaratory, or that which defines the rights to be observed, and the wrongs to be eschewed;

The Directory, commanding the subject to observe the right and abstain from the wrong;

The Remedial, pointing out the method to recover the right or redress the wrong; and

The Vindicatory, or sanction, declaring the penalty to be inflicted for a violation of the law.

This division is correct and philosophical, but has little practical value. A statute for practical purposes is divided into the following parts:

The Title.

The Commencement.

The Preamble.

The Purview, or Body of the Act.
Special Clauses.

Provisoes.
Exceptions.

Schedules.

The Title.-The custom of prefixing titles to statutes was not regularly introduced prior to the eleventh year of the reign of Henry VII, though particular instances may have

* Introduction, § 2.

occurred before that time. The title was formerly called the Rubric, from being written in red characters.* (a)

In the early English cases, the courts held the title to be no part of the statute, "no more," says Lord Holt, “than the title of a book is part of the book." This is not a very good illustration. The reason of the rule in England is better stated by Mr. Dwarris, who says that the title is usually framed only by the clerk of that house in which the bill first passes, and is seldom read more than once. In accordance with this, the title has been said to afford no clue to the legislative intent.

But it now seems that where the meaning of the body of the act is doubtful, the title may be relied on as an assistance in arriving at a conclusion. The title, however, being, in strictness, no part of the act in a legal sense, it would be absurd to attempt to use it for the purpose of restraining or controlling any positive provision of the act. It can only be used for the fact of the maker's having given the law a certain name, if that

Dwarris, p. 500; Chance v. Adams, Hard, 334.

Rex v. Williams, 1 W. Bl. 85; Poulter's Case, 3 Rep. 33; Mills v. Wilkins, 6 Mod. 62. Dwarris, p. 501.

| 1 Ambler, 22.

Stradling v. Morgan, Plowden, 203; King v. Cartwright, 4 T. R. 490; King v. George Marks, 3 East, 160.

(a) Title.-No part of the act but may be referred to in case of doubt, to ascertain the meaning. Cohen v. Barrett, 5 Cal. 195; Commonwealth v. Slifer, 53 Penn. St. 71. In the absence of the peculiar provision found in some State Constitutions, the title cannot restrain or control any positive provisions of a statute. Flynn v. Abbott, 16 Cal. 358; and this is especially true of acts of Congress. Hadden v. The Collector, 5 Wall, 107.

But when the Constitution requires the subject to be stated in the title, the title is of more importance, and may control the statute or some portion of it. Nazro v. Merchants, &c. Co. 14 Wisc. 295; Dodd v. State, 18 Ind. 56; but see ex parte Newman, a Cal. 502, 523. In California the constitutional provision in question is held to be directory merely. See the whole subject discussed at large, post, in note on the provision as to "Titles and Subjects."

As to a subtitle or heading, all that follows under it will be limited by it, e. g., when the heading was "width and level of new streets," the provisions under it were limited to new streets, although broad enough to include old ones. Shiel v. Mayor of Sunderland, 6 H. and N. 796. But as to how far headings and subtitles in a codification are to be considered, see Battle v. Shivers, 39 Geo. 405; People v. Molyneux, 40 N. Y. 113. A marginal note is no part of a statute, nor guide to its construction. Claydon v. Green, 3 Law Rep. C. P. 511. The title is presumed to express the intent of the law, unless plainly contradicted by the body of the act. Conn. &c. Ins. Co. v. Albert, 39 Mo. 181; and the title is especially to be considered where referred to in the body of the act. Torreyson v. Examiner, 7 Nev. 19.

fact can render any assistance in doubtful cases. Taken in connection with the other parts of the statute, the title, where the intent is not plain, may somewhat assist in removing ambiguities.*

In this country it has been said, on the same principle, though the title cannot control the plain intent of the statute, that where the words are doubtful, it may be resorted to to remove ambiguities.†

It seems to me, on the whole, however, that the original rule is the true one. The title is rarely a matter of legislative debate or scrutiny; and though it may, and doubtless does, give a general idea of the purport of the act, still it is precisely in cases of nicety and doubt that it cannot with safety be relied on.t

In another point of view, the title of the statute has recently received much importance in some of the States of the Union. The 16th section of the 3d art. of the Constitution of New York, adopted in the year 1846, declares that "No private or local bill which may be passed by the Legislature shall embrace more than one subject, and that shall be expressed in the title." The design of this constitutional provision has been judicially declared to have been "to prevent the uniting of various objects, having no necessary or natural connection with each other, in one bill, for the purpose of combining various pecuniary interests in support of the whole, which could not be combined in favor of either by itself;" and on the ground that the provision was to be so construed as to reach this mischief alone, it has been held, that an act entitled " An act in relation to the fees and compensation of certain officers in the city and county of New York," by which salaries were given to four officers of that city, in place of the fees of their respective offices, and providing also that the fees should be paid into the city treasury and the salaries paid out of them, even assuming it to be a private bill, was not within the constitutional restric

* Dwarris, p. 502.

U. S. v. Fisher, 2 Cranch R. 386; U. S. v. Palmer, 3 Wheat. 610; State v. Stephenson, 2 Bailey, 334; Burgett v. Burgett, 1 Ham. 219; Commonwealth v. Slifer, 53 Penn. St. 71.

See reference to Title for aid in case of ambiguity, Williams v. Williams, 4 Seld. 525, 535.

| Conner v. The Mayor, 1 Seld. 285, 293.