Effect of

recitals.

held that an Act of the 3rd year of James the First, which erroneously recited that sewers, streams and watercourses, where no passage of boats was used, and where the water did not usually ebb and flow, were not under the survey of the Commission of Sewers, nor of the statute made for sewers in the 23rd year of Henry the Eighth, did not take away the jurisdiction which the Act of Henry the Eighth had in fact given to the Commissioners over a sewer above the ebb and flow of the tide (1).

Another consequence of this presumption appears in the effect given to recitals. It is said by Lord Campbell (m), in a passage cited with approval by Lord Chelmsford (n), that "a mere recital in an Act of Parliament, either of fact or law, is not conclusive; and we are at liberty to consider the fact or the law to be different from the statement in the recital." If an Act of Parliament recites that a road is situated in a certain parish (o), that a certain town is a borough (p), that a person is a member of a company (q), that a prior tenant for life of an estate is dead (r), or that a person has

C.J.; Ex parte Lloyd, 1 Sim. N. S. at p. 250, per Lord Cranworth, V.-C.; Mitcalfe v. Hanson, L. R. 1 H. L. at p. 250, per Lord Cranworth, C.

(1) Dore v. Gray, 2 T. R. 358.

(m) R. v. Haughton, 1 E. & B. at p. 516.

(n) Jones v. Mersey Docks, 11 H. L. C. at p. 518; 20 C. B. N. S. at p. 143.

(0) R. v. Haughton, 1 E. & B. 501.

(p) R. v. Greene, 6 A. & E. 548.
(q) Scott v. Berkeley, 3 C. B. 925.
(r) Cowell v. Chambers, 21 Beav. 619.

been attainted of treason (s), the Court will not
act upon such recitals without further evidence, or
will allow them to be contradicted. The highest
value which was ever put upon such recitals was
their recognition as evidence of the facts contained
in them (t); but this sanction was denied them
when they formed part of private Acts of Parlia-
ment, which were held to be binding upon none
save parties and privies (u). The reason for attach-
ing no greater weight than this to the recitals in
Acts of Parliament is given in an early case:-
"This recital cannot be taken to proceed but
upon information, and the Court of Parliament
be misinformed as well as other Courts; none
may
can imagine they would purposely recite a false
thing to be true . . . From hence it follows that
they do not intend any one to be concluded by such
recital grounded upon falsehood, for he who says
to the contrary affirms that their intention is to
oppress men wrongfully" (x).

the law.

With regard to recitals which are inaccurate in May alter point of law we must bear in mind that the power of declaring what the law shall be for the future includes the power of altering the law, and therefore an Act which is erroneous in its recital of existing principles may become accurate by

(s) Earl of Leicester v. Heydon, Plowd. 384, 398.

(t) R. v. Sutton, 4 M. & S. 532; R. v. Berenger, 3 M. & S. 67.

(u) Brett v. Beals, Moody & Malkin, 416; Taylor v. Parry,1 M. & G. at p. 619; Duke of Beaufort v. Smith, 4 Ex. at p. 470; Earl of Shrewsbury v. Scott, 6 C. B. N. S. at p. 157; Wharton Peerage, 12 Cl. & Fin. at p. 302, explained by Lord St. Leonards in the Shrewsbury Peerage, 7 H. L. C. at. p. 13. See also the remarks of Brett, L.J., in Sturla v. Freccia, L. R. 12 Ch. D. at p. 432.

(c) Earl of Leicester v. Heydon, Plowd. at p. 398.

Legisla

ture is

to know

the construction put upon statutes by the Courts.

reason of the changes it has effected. Thus where an Act of Congress in giving jurisdiction of a certain kind to District Courts used words which "indicated an opinion" that such jurisdiction already existed in Circuit Courts, it was held that the effect of these words was to give the Circuit Courts that jurisdiction which they were assumed to possess. The words of the Act were that District Courts should have cognizance concurrent with the Circuit Courts of certain actions, and the Court said, "a mistaken opinion of the Legislature concerning the law does not make the law. But if this mistake is manifested in words competent to make the law in future we know of no principle which can deny them this effect. The Legislature may pass a declaratory Act which though inoperative on the past may act in future. This law expresses the sense of the Legislature on the existing law as plainly as a declaratory Act, and expresses it in terms capable of conferring the jurisdiction" (y).

The Legislature is presumed to know not only presumed the general principles of law, but the construction which the Courts have put upon particular statutes. Where an Act or a section which has received a judicial construction is re-enacted in the same words, such re-enactment is treated as a legislative recognition of that construction (z). So where an Act in pari materia with one which has received a judicial construction uses the same words which

(y) Postmaster-General v. Early, 12 Wheaton, 136, 148.

(z) Mansell v. The Queen, 8 E. & B. at p. 73, per Lord Campbell, C.J.; Ex parte Campbell, L. R. 5 Ch. 703.

have been so construed, or analogous words, the Court infers that those words are intended to convey the same meaning (a). Thus, where the provisions of one tariff Act are substituted for those of another, the Legislature cannot be presumed to attach to the terms employed in the second Act a different sense from that which had been adopted in the first (b). In like manner, where the County Courts Act, 1846, provided that a plaintiff dwelling more than twenty miles from the defendant might sue in the Superior Court, it was held that these words recognised a former decision, by which the miles were to be measured in a straight line. "The Legislature, which must be taken to know that such was the construction put upon the words by this Court, and that the decision stood unreversed, uses the same words. It seems fair to say

that it was intended that they should be construed in the same manner" (c).

Parlia

Again, where the Legislature itself has put a By earlier particular construction upon the words of a statute, ments. and the same words are used in a subsequent statute, the meaning which has thus been recognised by the Legislature must be adopted. The Bankruptcy Act, 6 Geo. IV. c. 6, s. 125, had avoided all securities given by a bankrupt to any creditor with a view of persuading such creditor to sign the bankrupt's certificate. This provision was repealed

(a) Jones v. Mersey Docks, 11 H. L. C. at p. 480; 20 C. B. N. S. at p. 124; East and West India Docks v. Guttke, 3 Macn. & G. at P. 166.

(b) Roosevelt v. Maxwell, 3 Blatchford's Circuit Court Reports, 391. (c) Lake v. Butler, 5 E. & B. at p. 95, per Crompton, J.

с

Such construction

by 5 & 6 Wm. IV. c. 41, on the ground that it would be a hardship if such securities were rendered void when they were in the hands of bona fide holders. The earlier section, however, was reenacted in substantially the same terms by the Bankruptcy Act, 1849 (12 & 13 Vict. c. 106, s. 202), and it was held that the construction adopted by the Legislature must be put upon the re-enactment, and that such securities were void in the hands of bona fide holders (d).

An express recognition of the construction which recognised the judges have put upon statutes is not always by impli- needed. In some cases the silence of the Legis

cation.

lature is equally emphatic. As the Legislature knows what the law is and has the power of altering it, any mistakes on the part of the judges may at once be corrected. The absence of any such correction shows that the Courts have rightly ascertained the intention of the Legislature. "I recollect," says Lefroy, B., "Lord Redesdale saying, that when the Court has been in the habit of putting a particular construction upon an Act of Parliament, and the Legislature has not interfered, it must be considered as the true construction of the Act" (e). If, however, Parliament has expressly recognised any judicial decision, and that decision is afterwards overruled, is it to be said that the Legislature has mistaken the law, or is there room for any conflict between the Court which has the power to overrule and the Legisla

(d) Goldsmid v. Hampton, 5 C. B. N. S. 94.
(e) Phelan v. Johnson, 7 Ir. L. R. at p. 535.