Whereas – Meaning of the word used in Preamble

“Whereas.”

The proper function of a preamble is to explain and recite certain facts which are necessary to be explained and recited, before the enactments contained in an Act of Parliament can be understood. A preamble may be used for other reasons: to limit the scope of certain expressions or to explain facts or introduce definitions. (Lord Thring, Practical Legislation, p. 36.) The preamble has been said to be a good means to find out the intention of a statute, and, as it were, a key to the understanding of it. It usually states, or professes to state, the general object and meaning of the Legislature in passing the measure. Hence it may be legitimately consulted for the purpose of solving an ambiguity or fixing the connotation of words which may possibly have more than one meaning, or determining the scope or limiting the effect of the Act, whenever the enacting parts are, in any of these respects, open to doubt. But the preamble cannot either restrict or extend the legislative words, when the language is plain and not open to doubt, either as to its meaning or its scope. (Maxwell on the Interpretation of Statutes [1875], pp. 35–45.)

In the case of Overseers of West Ham v. Iles (1883), 8 App. Cas. p. 388, Lord Blackburn said: “My Lords, in this case the whole question turns upon the construction of sect. 19 of 59 Geo. III. c. 12. I quite agree with the argument which has been addressed to your Lordships, that in construing an Act of Parliament, where the intention of the Legislature is declared by the preamble, we are to give effect to that preamble to this extent, namely, that it shows us what the Legislature are intending; and if the words of enactment have a meaning which does not go beyond that preamble, or which may come up to the preamble, in either case we prefer that meaning to one showing an intention of the Legislature which would not answer the purposes of the preamble, or which would go beyond them. To that extent only is the preamble material.”

Although the enacting words of a statute are not necessarily to be limited or controlled by the words of the preamble, but in many instances go beyond it, yet, on a sound construction of every Act of Parliament, the words in the enacting part must be confined to that which is the plain object and general intention of the Legislature in passing the Act; and the preamble affords a good clue to discover what that object was. (Per Lord Tenterden, C.J., in Halton v. Cove, 1 B. and Ad. 538; Salkeld v. Johnson, 2 Exch. 283; per Kelly, C.B., in Winn v. Mossman, L.R. 4 Ex. 300; cited,

Broom’s Legal Maxims, 5th ed. p. 572.) “The only rule for the construction of Acts of Parliament is that they should be construed according to the intent of the Parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound the words in their natural and ordinary sense. The words themselves alone do in such case best declare the intention of the lawgiver. But if any doubt arises from the terms employed by the Legislature, it has always been held a safe means of collecting the intention to call in aid the ground and cause of making the statute, and to have recourse to the preamble, which according to Chief Justice Dyer (Plowd. 369) is a key to open the minds of the makers of the Act and the mischiefs which they intended to redress.” (Per Tindal, C.J., delivering the opinion of the Judges in the Sussex Peerage Case, 11 Cl. and Fin. 143; per Buller, J., in R. v. Robinson, 2 East P.C. 1113; cited R. v. Johnson, 29 St. Tr. 303; Broom’s Legal Maxims, 5th ed. 573.

It is a general rule, in the construction of statutes, that the preamble may extend, but cannot restrain, the effect of an enacting clause. (Kearns v. Cordwainers’ Co., 28 L.J. C.P. 285; D.E.C.L. xiii. p. 1882.)

We ought not to restrict a section in an Act of Parliament by the preamble or general purview of the Act where the section is not inconsistent with the spirit of the Act. (Sutton v. Sutton, 22 Ch. D. 521. Id.)

The preamble of an Act of Parliament is proper to explain the general body of it. (Copeman v. Gallant, 1 P. Wms. 317. Id.)
If the enacting part of a statute will bear only one interpretation, the preamble shall not confine it; but if it is doubtful, the preamble may be applied to throw light upon it. (Mason v. Armitage, 13 Ves. 36. Id.)
In construing an Act of Parliament, or any other instrument, the court is at liberty to regard the state of the law at the time, and the facts which the preamble or recitals of the Act of instrument prove to have been the existing circumstances at the time of its preparation. (Attorney-General v. Powis, 2 Eq. R. 566. Id. 1883.)

The preamble of an Act of Parliament, though it may assist ambiguous words, cannot control a clear and express enactment. (Lees v. Summersgill, 17 Ves. 508. Id.)
But it may serve to give a definite and qualified meaning to indefinite and general terms. (Emanuel v. Constable, 3 Russ. 436, overruling Lees v. Summersgill. Id.)

In construing Acts, the court must take into consideration not only the language of the preamble, or any particular clause, but of the whole Act; and if, in some of the enacting clauses, expressions are to be found of more extensive import than in others, or than in the preamble, the Court will give effect to those more extensive expressions, if, upon a view of the whole Act, it appears to have been the intention of the Legislature that they should have effect. (Doe d. Bywater v. Brandling, 6 L.J. (o.s.) K.B. 162. Id.)

The effect of the preamble of a repealed Act was considered in Harding v. Williams, 1880, 14 Ch. Div. 197. The effect of a preamble to a particular section of an Act was considered in ex parte Gorely, re Barker, 34 L.J. (B.)


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


THE PREAMBLE

CONSTITUTION OF THE UNITED STATES

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

PURPOSE AND EFFECT OF THE PREAMBLE

Although the preamble is not a source of power for any department of the Federal Government,1 the Supreme Court has often referred to it as evidence of the origin, scope, and purpose of the Constitution.2 “Its true office,” wrote Joseph Story in his  Commentaries, “is to expound the nature and extent and application of the powers actually conferred by the Constitution, and not substantively to create them. For example, the preamble declares one object to be, ‘provide for the common defense.’ No one can doubt that this does not enlarge the powers of Congress to pass any measures which they deem useful for the common defence. But suppose the terms of a given power admit of two constructions, the one more restrictive, the other more liberal, and each of them is consistent with the words, but is, and ought to be, governed by the intent of the power; if one could promote and the other defeat the common defence, ought not
the former, upon the soundest principles of interpretation, to be adopted?” 3


CONSTITUTION OF THE UNITED STATES OF AMERICA- CONGRESSIONAL RESEARCH SERVICE LIBRARY OF CONGRESS

Notes

1 Jacobson v. Massachusetts, 197 U.S. 11 (1905).
2 E.g., the Court has read the preamble as bearing witness to the fact that the Constitution emanated from the people and was not the act of sovereign and independent States. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793); Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816), and that it was made for, and is binding only in, the United States of America. Downes v. Bidwell, 182 U.S. 244 (1901); In re Ross, 140 U.S. 453, 464 (1891).
3 1 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES (Boston: 1833), 462. For a lengthy exegesis of the preamble phrase by phrase, see M. ADLER & W. GORMAN, THE AMERICAN TESTAMENT (New York: 1975), 63–118.