Statutory Interpretation

Marginal Notes of an Act


The marginal notes of the Act and the Constitution are copious and systematic; yet the bulk of authority would seem to show that they form no portion of the law. In Claydon v. Green, L.R. 3 C.P. 511, Mr. Justice Willes said:—

“Something has been said about the marginal note in section 4 of 9 Geo. IV. c. 61. I wish to say a word upon that subject. It appears from Blackstone’s Commentaries, vol. I. p. 183, that formerly, at one stage of the Bill in Parliament it was ordered to be engrossed upon one or more rolls of parchment. That practice seems to have continued down to the session of 1849, when it was discontinued, without, however, any statute being passed to warrant it (see May’s Parliamentary Practice, 3rd ed., 382). Since that time, the only record of the proceedings of Parliament—the important proceedings of the highest tribunal of the Kingdom—is to be found in the copy printed by the Queen’s printer. But I desire to record my conviction that this change in the mode of recording them cannot affect the rule which treated the title of the Act, the marginal notes, and the punctuation, not as forming part of the Act, but merely as temporanea expositio. The Act, when passed, must be looked at just as if it were still entered upon a roll, which it may be again if Parliament should be pleased so to order; in which case it would be without these appendages, which, though useful as a guide to a hasty inquirer, ought not to be relied upon in construing an Act of Parliament.”

Some doubts were thrown on the opinion of Mr. Justice Willes, expressed in 1868, by a contrary view taken and acted upon in 1876 by Sir George Jessel, Master of the Rolls, who, in the case of re Venour’s Settled Estates, 2 Ch. D. 525, said:—“This view is borne out by the marginal note, and I may mention that the marginal notes of Acts now appear on the rolls of Parliament, and consequently form part of the Acts, and in fact are so clearly so that I have known them to be the subject of motion and amendment in Parliament.” In the case of Attorney-General v. Great Eastern R. Co., 1879, 11 Ch. D. 449, the Master of the Rolls gave expression to the same view. When this case came before the Court of Appeal, consisting of James, Bramwell, Baggallay, L.JJ., he was overruled, and the law was finally settled that marginal notes form no legal part of a statute. Per James, L.J.: “What authority has the Master of the Rolls for saying that the courts do look at the marginal notes?” Per Bramwell, L.J.: “What would happen if the marginal notes differed from the section, which is a possibility, as is shown in section 112 of this Act? Does the marginal note repeal the section, or does the section repeal the marginal note?” Per Baggallay, L.J.: “I never knew an amendment set down or discussed upon the marginal note to a clause. The House of Commons never has anything to do with the amendment of the marginal note.”

Commentaries on the Constitution of the Commonwealth of Australia -Garran, Robert, Sir (1867-1957)