George Dawson Esqr. vs. The Sloop Dolphin, Walson, Lothrop and others owners.
This Vessell was seized merely for the omission of an Indorsement upon her Register.
7. & 8. W. 3d, c. 22. An Act for preventing Frauds and regulating Abuses in the Plantation Trade.
§.2: Be it enacted, that after 25th March 1698— “No Goods or Merchandises, shall be imported into or exported out of, any Colony or Plantation, to his Majesty in Asia, Africa, or America, belonging, or in his Possession
, or which may hereafter belong unto, or be in the Possession of his Majesty, his Heirs or Successors, or shall be laden in, or carryed from any one Port or Place in the said Colonies or Plantations, to any other Port or Place in the same, the Kingdom of England, Dominion of Wales, or Town of Berwick upon Tweed, in any Ship or Bottom but what is, or shall be of the built of England, or of the Built of Ireland or the said Colonies or Plantations, and wholly owned by the People thereof
, or any of them, and navigated with the Masters, and three fourths of the Mariners of the said Places only” (except Prize ships &c. and foreign ships employed for 3 years to bring in naval Stores) “Under Pain of Forfeiture of Ship and Goods”
1/3 to the King, 1/3 to the Governor, 1/3 to the Informer.2
§.17. “For the more effectual Prevention of Frauds which may be used to elude the Intention of this Act by colouring Foreign Ships under English Names;” be it further enacted, &c. that, “No Ship, or Vessell, shall be deemed or pass, as a Ship of the Built of England, Ireland, Wales, Berwick, Guernsey, Jersey, or any of his Majestys Plantations in America so as to be qualified to Trade to, from, or in, any of the said Plantations
untill the Person, or Persons, claiming Property in such Ship or Vessell shall register the same
as follows, that is to say, if the Ship, at the Time of such Register doth belong to
any Port in England, Ireland, Wales, or to the Town of Berwick upon Tweed, then Proof shall be made upon oath of one or more of the owners of such Ship or Vessell, before the Collector, and Comptroller, of his Majestys Customs in such Port; or if at the Time of such Register, the Ship belong to any of his Majestys Plantations in America, or to the Islands of Guernsey or Jersey, then the like Proof to be made before the Governor, together with the Principal officer of his Majesty's Revenue residing on such Plantation or Island” &c.
§.18. “Which Oath, being attested by the Governor or Custom officer, respectively who administered the same, under their Hands and Seals, shall after having been registered by them, be delivered to the Master of the Ship for the Security of her Navigation
, a Duplicate of which Register shall be immediately transmitted to the Commissioners of Customs in the Port of London, in order to be entered in a general Register to be there kept for this Purpose, with Penalty
upon any Ship or Vessell trading to, from, or in any of his Majesty's Plantations in America” &c. “and not having made Proof of her Built and Property, as is here directed that she shall be liable, and she is hereby made liable, to such Prosecution and Forfeiture, as any foreign ship” (except Prizes &c.) “would for trading with those Plantations by this Law be liable to.”4
Prize ships to be registered &c.5
Fisher Boats, Hoys &c. Lighters &c. not to be registered.6
§. 21. “That No Ships Name registered shall be afterwards changed, without registering such Ship de Novo, which is hereby required to be done, upon any Transfer of Property to another Port, and delivering up the former Certificate to be cancelled, under the same Penalties,
and in the like Method, as is herein before directed; and that in Case there be any alteration of Property in the same Port, by the Sale of one or more Shares in any Ship after registering thereof, such Sale shall always be acknowledged by Indorsement on the Certificate of the Register before two Witnesses, in order to prove that the entire Property in such Ship remains to some of the Subjects of England, if any dispute arises concerning the same.”
Rules of Construction. Woods Inst. 8.8
—3. Rep. 7.b.9
—4 Bac. Abr. 652.11
1 Blackst. Com. 87. 88.12
—1. Inst. 11.b.13
2. 7 & 8 Will. 3, c. 22, §2 (1696). Quotation marks supplied. Italics are JA's. The last clause of the section is “and the other third part to the person who shall inform and sue for the same, by bill, plaint or information, in any of his Majesty's courts of record at Westminster, or in any court in his Majesty's plantations, where such offense shall be committed.”
3. 7 & 8 Will. 3, c. 22, §17 (1696). Quotation marks supplied. Italics are JA's. The section concludes,
“which oath the said governors and officers of the customs respectively are hereby authorized to administer in the tenor following, viz. “JURAT” A.B. That the ship [name] of [port] whereof [master's name] is at present master, being a [kind of built] Of [burthen] tuns, was built at [place, where] in the year [time when] and that [owners name] of 
of, &c. are at present owners thereof; and that no foreigner, directly or indirectly, hath any share, or part, or interest therein.”
As to the administration of this provision, see Bernard and Lotte Bailyn, Massachusetts Shipping 1697–1714
1–12 (Cambridge, Mass., 1959).
4. 7 & 8 Will. 3, c. 22, §18 (1696). Quotation marks supplied. Italics are JA's.
5. 7 & 8 Will. 3, c. 22, §19 (1696), providing that ships condemned as prize in the High Court of Admiralty in England are to be specially registered, with oath made as to their capture and condemnation, rather than their building.
6. 7 & 8 Will. 3, c. 22, §20 (1696), providing that such craft need not be registered if they are used only for river or coastwise navigation.
7. 7 & 8 Will. 3, c. 22, §21 (1696). Quotation marks supplied. Italics are JA's.
8. This reference is ambiguous, since rules of statutory construction appear on page 8 of both Thomas Wood, An Institute of the Laws of England
(London, 9th edn., 1763), and of Thomas Wood, A New Institute of the Imperial or Civil Law
(London, 1704). While it is possible that JA used the latter work because of the civil-law nature of the court of Admiralty (See No. 46, note
), the rules in the former are more directly concerned with the interpretation of acts of Parliament, the problem here; moreover, the authorities cited in notes
, below, appear in the first cited work, which is also quoted in JA's other notes on construction. See note 5
above. Following are pertinent passages from Wood, Institute of the Laws of England
“The Preamble or Rehearsal of a Statute is to be taken for Truth; therefore good Arguments and Proofs may be drawn from the Preamble or Rehearsal. . . .
“A Sentence, which begins and ends with specifying Persons and Things of an inferior Rank ought not to be extended by General Words to those that are Superior; as by these general Words, (viz.) And no other Person or Act whatsoever, &c. shall not include superior Persons or Things that were not particularly expressed.
“Statutes must be interpreted by reasonable Construction, according to the Meaning of the Legislators.
“It is natural to construe one part of a Statute by another.
“They may be construed according to Equity; especially where They give Remedy for Wrong; or are for Expedition of Justice, or to prevent Delays; for Law-makers cannot comprehend all Cases. . . .
“A Penal Statute regularly ought to be construed strictly. But it may
be construed beneficially; for what is out of the Mischief, is out of the Meaning of a Law, though it is within the Letter. [The preceding two sentences appear in JA's notes on construction, note 5 above.]
And on the contrary, what is within the same Mischief, shall be within the same Remedy, tho' it be out of the Letter of the Law. . . .
“It [a Statute] must be construed that no innocent Man may by a literal Construction receive [i.e. sustain] Damages.
“Statutes made to prevent and suppress Fraud ought to have a favourable Interpretation. . . .
“Custom or Usage is a good Interpreter of a Law.”
9. Heydon's Case, 3 Co. Rep.
7a, 7b, 76 Eng. Rep.
637, 638 (Exch.
1584), held that a copyhold estate was an estate for life within the meaning of 31 Hen. 8, c. 13 (1540), a statute intended to prevent religious orders from avoiding dissolution by making new leases of lands when estates were already in being in those lands.
“[F]or the sure and true Interpretation of all Statutes in general (be they penal or beneficial, restrictive or enlarging of the Com. 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.
“And 4. The true Reason and Remedy; and then the Office of all the Judges is always to make such Construction as shall suppress the Mischief, and advance the Remedy, and to suppress subtil Inventions and Evasions for Continuance of the Mischief, and pro privato commodo, and to add Force and Life to the Cure and Remedy, according to the true Intent of the Makers of the Act, pro bono publico.”
10. 4 Coke, Institutes
“Every Statute ought to be expounded according t/o the intent of them that made it, where the words thereof are doubtful and incertain, and according to the rehearsal of the Statute; and there [i.e. in Year Book, 4 Edw. 4, fols. 4, 12] a general statute is construed particularly, upon consideration had of the cause of making of the Act, and of the rehearsal of all the parts of the Act. To conclude this point with a general rule allowed by all laws in construction of statutes, Quamvis lex generaliter loquitur, restringenda tamen est, ut cessante ratione et ipsa cesset: cum enim ratio sit anima vigorque ipsius legis, non videtur legislator id sensisse quod ratione careat etiamsi verborum generalitas prima facie aliter suadeat.”
11. 4 Bacon, Abridgment
652 contains several authorities to the effect that despite the rule of strict construction, the intent of the legislature must be observed. Compare note
below. There follows a series of “other rules” to be followed in statutory construction which are more favorable to JA's case. For example,
“Acts of Parliament are to be so construed, that no Man, who is innocent or free from Injury or Wrong, be punished or endamaged.
“No Statute shall be interpreted so as to be inconvenient, or against Reason.”
In JA's notes on construction, note 5
above, appears the following extract from 4 Bacon, Abridgment
“4. Bac. Abr. 651. 9. Penal Acts of Parliament are to be strictly construed. The Rules of the Common Law will not suffer the general Words of a Statute to be restrained, to the Prejudice of him upon whom a Penalty is to be inflicted: But there are a Multitude of Cases, where such general Words shall be restrained in his favour.”
12. 1 Blackstone, Commentaries
*87–88, part of a discourse on “the rules to be observed with regard to the construction of statutes.” In JA's notes on construction, note 5
above, appear abstracts of the following passages:
“1. . . . Let us instance again in the same restraining statute of the 13 Eliz. [i.e. 13 Eliz. 1, c. 10]. By the common law ecclesiastical corporations might let as long leases as they thought proper: the mischief was, that they let long and unreasonable leases, to the impoverishment of their successors: the remedy applied by the statute was by making void all leases by ecclesiastical bodies for longer terms than three lives or twenty one years. Now in the construction of this statute it is held, that leases, though for a longer term, if made by a bishop, are not void during the bishop's life; or, if made by a dean and chapter, they are not void during the life of the dean: for the act was made for the benefit and protection of the successor. The mischief is therefore sufficiently suppressed by vacating them after the death of the grantors; but the leases, during their lives, being not within the mischief, are not within the remedy. . . .
“3. Penal statutes must be construed strictly. Thus the statute 1 Edw. VI. c. 12. having enacted that those who are convicted of stealing horses should not have the benefit of clergy, the judges conceived that this did not extend to him that should steal but one horse, and therefore procured a new act for that purpose in the following year. And, to come nearer our own times, by the statute 14 Geo. II, c. 6, stealing sheep, or other cattle, was made felony without benefit of clergy. But these general words, 'or other cattle,' being looked upon as much too loose to create a capital offence, the act was held to extend to nothing but mere sheep. And therefore in the next sessions, it was found necessary to make another statute, 15 Geo. II, c. 34. extending the former to bulls, cows, oxen, steers, bullocks, heifers, calves, and lambs, by name.”
13. Coke, Littleton
“From statutes his arguments and proofs are drawn, 1. From the rehersal or preamble of the statute. 2. By the body of the Law diversly interpreted. Sometime by other parts of the same statute, which is benedicta expositio & ex visceribus causae. Sometime by reason of the Common Law. But ever the general words are to be intended of a lawful Act, and such interpretation must ever be made of all statutes, that the innocent or he in whom there is no default may not be damnified.”