Obscure and involved exposition of laws

LXV. Laws are obscurely described either—1, through their loquacity and superfluity of words; 2, through over-conciseness; or, 3, through their preambles contradicting the body of the law.

LXVI. We at present treat of the obscurity which arises from their ill description, and approve not the loquacity and prolixity now used in drawing up the laws, which in no degree obtains what is intended by it, but rather the contrary; for while it endeavors to comprehend and express all particular cases in apposite and proper diction (as expecting greater certainty from thence), it raises numerous questions about terms, which renders the true and real design of the law more difficult to come at through a huddle of words.

LXVII. Nor yet can we approve of a too concise and affected brevity, used for the sake of majesty and authority, especially in this age; lest the laws should become like the Lesbian rule. A mediocrity, therefore, is to be observed, and a well-defined generality of words to be found, which though it does not accurately explain the cases it comprehends, yet clearly excludes those it does not comprehend.

LXVIII. Yet in the ordinary politic laws and edicts, where lawyers are seldom consulted, but the politicians trust to their own judgment, things ought to be largely explained and pointed out to the capacity of the vulgar.

LXIX. Nor do we approve of tedious preambles at the head of laws: they were anciently held impertinent, as introducing laws in the way of dispute, not in the way of command. But as we do not suit ourselves to the manners of the ancients, these prefaces are now generally used of necessity, not only as explanations, but as persuasives to the passing of the law in the assemblies of states, and likewise to satisfy the people; yet as much as possible let preambles be avoided, and the law begin with commanding.

LXX. Though the intent and mind of the law may be sometimes drawn from these preambles, yet its latitude and extent should by no means be derived from them; for the preamble frequently fixes upon a few of the more plausible and specious particulars, by way of example, while the law itself contains many more; or on the contrary, the law restrains and limits many things, the reason whereof it were not necessary to insert in the preamble; wherefore the extent of the law is to be derived from the body of the law, the preamble often exceeding or falling short of this extent.

LXXI. There is one very faulty method of drawing up the laws, viz., when the case is largely set forth in the preamble, and then by the force of the word which, or some such relative, the body of the law is reflected back upon the preamble, and the preamble inserted and incorporated in the body of the law; whence proceed both obscurity and danger, because the same care is not usually employed in weighing and examining the words of the preamble, as the words of the law itself.