the clearer of two ways of expressing same idea. have employed it is necessary, on all occasions, to give the Legislature credit for employing those words which will express its meaning more clearly than any other words; so that if in any particular instance it can be shown that there are two expressions which might have been used to convey a certain intention, but one of those expressions will convey that intention more clearly than the other, we are bound to conclude that, if the Legislature uses that one of the two expressions which would convey the intention less clearly, it does not intend to convey that intention at all, and we must then look about to discover what intention it did intend to convey. "In endeavouring," said Pollock, C.B., in Att.-Gen. v. Sillem (1863), 2 H. & C. 515, "to discover the true construction of any particular clause of a statute, the first thing to be attended to, no doubt, is the actual language of the clause itself, as introduced by the preamble; 2nd, the words or expressions which obviously are by design omitted; 3rd, the connection of the clause with other clauses in the same statute, and the conclusions which, on comparison with other clauses, may reasonably and obviously be drawn. . . . . If this comparison of one clause with the rest of the statute makes a certain proposition clear and undoubted, the Act must be construed accordingly, and ought to be so construed as to make it a consistent and harmonious whole. If, after all, it turns out that that cannot be done, the construction that produces the greatest harmony and the least inconsistency is that which ought to prevail." Thus, in Waugh v. Middleton (1853), 8 Ex. 352, the Court said: "We are not compelled to read 'now' exactly as if the Legislature had used the word 'heretofore.' A very strong reason for holding that the Legislature have not used the word 'now' in that sense is that, if the Legislature intended so to use it, expressions would have been adopted which would have left no possible doubt as to what was intended. But there are no expressions which clearly and distinctly indicate the intention of giving effect to deeds which had theretofore been entered into, and completed so as to bind other persons not parties to them. And in the absence of those expressions, which might have been so easily used, grave doubts may be entertained as to whether this could have been the meaning." Similarly, in Dover Gaslight Co. v. Mayor of Dover (1855), 1 Jur. N. S. 813, Turner, L.J., held that a certain construction, which it had been suggested might be put upon an Act, was not the right construction; "for," said he, "if such had been the intention of the Legislature, I think more appropriate language might have been used.” Again, in Att.-Gen. v. Sillem (1863), 2 H. & C. 526, it was contended, on the part of the prosecution, that 59 Geo. 3, c. 69, s. 7, was meant to put ships constructed for war upon a footing different from any other munitions of war: to leave cannon, arms, and gunpowder to be freely supplied to belligerent Powers, but to prevent ships of a war-like character from being furnished to them. "If this had been the object of our Legislature," said Pollock, C.B., "it might have been accomplished by the simplest possible piece of legislation; it might have been expressed in language so clear that no human being could entertain a doubt about it, instead of the awkward, difficult, and doubtful clause which it is admitted, on the part of the prosecution, we have to deal with." Mode of ascertaining meaning if obscure. 1. IF the language of an Act of Parliament is clear and explicit, it must, as already stated,(a) receive full effect, (whatever may be the consequences. Of many an Act, however, it can be fairly said, as was said by Lord Herschell (b) of the Building Societies Act, 1884 (47 & 48 Vict. c. 41) that no construction of it " is free from difficulty, and no construction carries out a clear and well-defined policy of the Legislature."(c) If (as is often the case) the (a) Ante, p. 77. Western Building Society v. Martin (1885), 17 Q. B. D. 609. 66 As For other examples of obscure statutes, see Winter v. Att.-Gen. of Victoria (1875), L. R. 6 P. C. 378, where the Judicial Committee described the Land Act, 1869, s. 98, as not merely ambiguous, but, according to the literal meaning of its language, insensible." In Cocker v. Cardwell (1869), L. R. 5 Q. B. 15, Cockburn, C.J., stigmatises the drafting of the Nuisance Removal Acts, therein cited, as one of the most remarkable specimens of legislative incuria of the many which are daily brought before us." Sir James Stephen, in his Digest of Criminal Law, points out several obscurely worded statutes; at p. xix, note 2, he says, "Let any one read and try to construe 24 & 25 Vict. c. 98, ss. 13-16, and ss. 27, 28, are still worse." to 39 & 40 Vict. c. 36, ss. 188, 189, he says, at p. 44, note 2, "There must be some mistake in the drafting, as there is no nominative case to the verb And at p. 173, note 4, he points out that, in 38 & 39 Vict. c. 94, s. 3, "the words [with or without her consent] ought either to be omitted altogether, or else changed into 'even with her consent." " It was the opinion of Daines Barrington that the statutes of the last century were much better drawn than in former times. He says, in his Observations on the Statutes (3rd ed.), p. 174, “It may with justice be asserted that modern statutes are infinitely more perspicuous and intelligible than the ancient ones, of which there can be no stronger proof than that there is not perhaps meaning of an enactment, whether from the phraseology used (d) or otherwise, is obscure, or if the enactment is, as Brett, L.J., said in The R. L. Alston (1883), 8 P. D. 9, "unfortunately expressed in such language that it leaves it quite as much open, with regard to its form of expression, to the one interpretation as to the other," the question arises," What is to be done? We must try and get at the meaning of what was intended by considering the consequences of either construction." And if it appears that one of these constructions will do injustice, and the other will avoid that injustice, "it is the bounden duty of the Court," as Lord Cairns said in Hill v. East and West India Dock Co. (1884), 9 App. Cas. 456, "to adopt the second, and not to adopt the first, of those constructions." However "difficult, not to say impossible," it may be to put a perfectly logical construction upon a statute, a court of justice is bound" (as Sir James Wilde pointed out in Phillips v. Phillips (1866), L. R. 1 P. & M. 173) “to construe it, and, as far as it can, to make it available for carrying out the objects of the Legislature, and for doing justice between parties."(e) า made if possible. The first business of the Courts is to make sense of the Sense to be ambiguous language, and not to treat it as unmeaning, it being a cardinal rule of construction that a statute is not to be treated as void, however oracular. This was thus laid down by Bowen, L.J., in Curtis v. Stovin (1889), 22 Q. B. D. 512, at p. 517: "The rules for the construction of statutes are very like those which apply to the construction of other documents, especially as regards one crucial ruleviz., that, if possible, the words of an Act of Parliament must be construed so as to give a sensible meaning to a single statute, since the Statute of Frauds and the Statute of Distri- (e) In Freme v. Clement (1881), L. R. 18 Ch. D. 499, at p. 508, Jessel, M.R., expressed the same idea in the following words: "We ought to adopt that interpretation which will make the law uniform, and will remedy the evil which prevailed in all the cases to which the law can be fairly applied." 51 & 52 Vict. c. 43. Rules in them. The words ought to be construed ut res magis valeat quam pereat. And Fry, L.J., added (loc. cit. p. 519): "The only alternative construction offered to us would lead to this result that the plain intention of the Legislature has entirely failed by reason of a slight inexactitude in the language of the section. If we were to adopt this construction, we should be construing the Act in order to defeat its object rather than with a view to carry its object into effect." In the particular case the Court had to deal with s. 65 of the County Courts Act, 1888, empowering the High Court to send certain actions which could not be commenced in a county court, for trial "in any county court in which the action might have been commenced."(ƒ) If these words had been taken literally, the section would have been ineffectual, for, ex hypothesi, the actions in question could not be commenced in the county court. The Court of Appeal therefore read into the section the words "if it had been a county court action," in order to give effect to the rule above enunciated. 2. The most firmly established rules for construing an obscure enactment are those laid down by the Barons of the Exchequer in Heydon's case,(g) which have been continually cited with approval (h) and acted upon, and are as follows:-"That for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered. (1) What was the common law before the making of the Act. (2) What was the mischief and defect for which the common law did not provide. (3) What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth. (4) The true reason of the remedy. And then the office of all the judges is always to make such (f) In the same section is used the Hibernicism, "convenient thereto," which has further embarrassed the judges in Burkill v. Thomas (1892), 1 Q. B. 99. (1584) 3 Co. Rep. 8. See 1 Bl. Comm. ed. Hargrave, p. 87, n. 38. E.g., in Miller v. Salomons (1852), 7 Ex. 475; Att.-Gen. v. Sillem (1863), 2 H. & C. 431; R. v. Castro (1874), L. R. 9 Q. B. 360; Davies v. Kennedy (1869), Ir. R. 3 Eq. 668, 693. |