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Browsing: Legal Papers of John Adams, Volume 2

Docno: ADMS-05-02-02-0006-0009

Dawson v. The Dolphin



Docno: ADMS-05-02-02-0006-0009-0001

Editorial Note

On 14 October 1772 George Dawson, an officer of the royal navy, who since at least 1768 had been commissioned to assist in the enforcement of the Acts of Trade off the New England coast, seized the sloop Dolphin and her cargo at Holmes Hole, Martha's Vineyard.1 The cause of the seizure was a defect in the vessel's papers. She had been built and registered in Marshfield, Massachusetts, in 1759, but in the meantime had been sold to new owners in that port. Unfortunately the requirement of the Act of 1696 that the transfer be endorsed on the register was overlooked. The Dolphin was thus in technical violation of a provision of the statute which had not previously been enforced. Samuel Fitch, now the Advocate General, brought a libel against vessel and cargo in Dawson's behalf on 4 November.2
The parties had been cited to appear on 11 November, but the argument was probably had early in February 1773. In the interim, vessel and { 224 } goods were released on stipulation to the owners.3 When the case came on, Adams, making his first known appearance in a forfeiture proceeding since 1769,4 was of counsel for the claimants. Fitch argued for Dawson. Adams' notes (Document I) set forth the statutory provisions upon which the case turned, as well as several authorities on the question of statutory construction.5 The opinion and decree of the court (Document II) show that Judge Auchmuty resolved the case into three issues: (1) If there were a violation, did the provision of the Act making an improperly registered vessel liable to forfeiture “as any foreign ship” bring into play the section dealing with foreign vessels, under which cargo too was forfeit, or was the penalty forfeiture of the vessel only?6 (2) Was this a penal statute which must thus be construed strictly? (3) Did the penalty of forfeiture, which clearly attached for failure to obtain the new registration required in the event of change of name or sale to new owners in a different port, apply to a sale to new owners in the same port?7
Auchmuty decided all three questions in favor of the claimants in a detailed and lengthy piece of statutory construction. His opinion on the first two points is relatively clear. On the last question, which was conclusive in the case, his language is somewhat muddy, but he seems to have found two bases for the result: (1) That no penalty attached for violation of the home-port sale provisions, whatever the nature of the sale. (2) That if, as Fitch argued, these provisions only covered the sale of a part interest in the vessel, then no provision of the Act covered the case of the Dolphin, which was a sale of the entire vessel within the home port. On whatever ground, on 2 March, Auchmuty decreed that the libel be dismissed as a matter of law. He found probable cause for the seizure, however, which meant that the claimants were required to pay their own costs.8
1. Dawson's commission has not been found. For an early example of his activity, see Dawson v. Lighter and Molasses, Vice Adm. Min. Bk., 26 April 1768, discussed in No. 47, note 512. See also No. 52 (1773). His activities against American shipping in the early years of the Revolution are reported in William Bell Clark, George Washington's Navy 113–114, 125–128, 159–160 (Baton Rouge, 1960). Officers of the navy had long aided in enforcing the Acts of Trade, although the scope of their authority was sometimes questioned. See, for example, 12 Car. 2, c. 18, §1 (1660); Harper, English Navigation Laws 177–179. The Navy's success in halting trade with the enemy during the French wars led, after 1763, to expanded authorization for naval officers to seize vessels violating the Acts of Trade. 3 Geo. 3, c. 22, §4 (1763); 4 Geo. 3, c. 15, §42 (1764); 5 Geo. 3, c. 45, §26 (1765); see Ubbelohde, Vice Admiralty Courts 38–44, 116. The authority for their commissions was not in the statutes, however. The Privy Council presumably directed the Commissioners of the Customs to deputize naval officers. See Lord Egremont to Governor Bernard, 9 July 1763, 10 Bernard Papers 120–121, MH. Their shares of seizures were established by Order in Council, 8 July 1763, Book of Charters, Commissions, Proclamations, &c., 1628–1763, fols. 254–257, M-Ar. Probably the American Commissioners acted under the same authority after 1767. The High Court of Admiralty in that year affirmed a decision of the Massachusetts Vice Admiralty Court condemning a vessel seized by the first of these officers to present his commission in Massachusetts in 1763. The question of the power to seize had been raised in the lower court and seems to have been discussed on the argument in the High Court, although the reported opinion there dealt with other questions. Bishop v. The Freemason, Quincy, Reports 387, 389–390 (Mass. Vice Adm., 1763), affirmed sub nom. The Freemason v. Bishop, Burrell 55, 167 Eng. Rep. 469 (High Ct. Adm., 1767). See No. 50, note 6; No. 52, note 5.
2. Massachusetts Gazette, 5 Nov. 1772, p. 3, col. 2. For the statute, see note 715 below. As to previous enforcement, see note 26 below. Fitch had been appointed Advocate General on 4 March 1770 to replace Sewall, who had finally resigned his post to undertake his new duties as Judge of Admiralty at Halifax. See “Boyle's Journal of Occurrences in Boston, 1759–1778,” 84 NEHGR 263 (1930).
3. See note 1738 below. The trial has been dated on two grounds: (1) The use of a stipulation suggests a delay in the proceedings, which usually followed the filing of the libel by a week or less. Since Dawson was a naval officer, delay may have been necessitated by his other duties. (2) Auchmuty's decree which might have been expected to follow trial by a week or so was given on 2 March 1773, and would have been given “some days sooner,” except for a petition for rehearing. See text following note 1940 below.
4. He had participated in the trial of an Admiralty appeal in Feb. 1772. See p. 104 above.
5. In the Adams Papers there is an undated MS in JA's hand entitled “Construction of Statutes,” which contains extracts from many of the authorities cited by JA at notes 8–1316–21 below. Adams Papers, Microfilms, Reel No. 185. In all probability these notes were made in preparation for this case.
6. 7 & 8 Will. 3, c. 22, §§2, 18 (1696), notes 210, 412, below.
7. 7 & 8 Will. 3, c. 22, §21, note 715 below.
8. The finding also barred any action against the seizing officer. 4 Geo. 3, c. 15, §46 (1764). These advantages had long been given to English customs officers under statutes which presumably were not applicable in the colonies. See 19 Geo. 2, c. 34, §16 (1746), discussed in No. 44, note 1062. It is usually held that the Act of 1764 marked the introduction of this privilege in the colonies. See Ubbelohde, Vice Admiralty Courts 50–51; Dickerson, Navigation Acts 179–184; Knollenberg, Origin of the American Revolution 179. As this case shows, the provision did not throw the entire cost of litigation upon the claimant. The purpose was to alter the familiar practice whereby the losing party bore the entire cost of suit. See 4 Holdsworth, History of English Law 536–538.
{ 225 }

Docno: ADMS-05-02-02-0006-0009-0002

Author: Adams, John
Date: 1773-02

Adams' Notes of Statutes and Authorities1

Court of Vice Admiralty, Boston, February 1773

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 { 226 } 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.
Form of the oath.3
§.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, { 227 } 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.”7
Rules of Construction. Woods Inst. 8.8—3. Rep. 7.b.9—4. Inst. { 228 } 330.10—4 Bac. Abr. 652.11 1 Blackst. Com. 87. 88.12—1. Inst. 11.b.13
1. In JA's hand, in his Admiralty Book, Adams Papers, Microfilms, Reel No. 184. For the dating, see note 3 above.
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 [] and [] 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 49126), 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 917, 1018, and 1321, 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 13–14:
“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 330:
“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 3413 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 651:
“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 11b:
“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.”
{ 229 }

Docno: ADMS-05-02-02-0006-0009-0003

Author: Auchmuty, Robert Jr.
Date: 1773-03-02

Auchmuty's Opinion and Decree1

Court of Vice Admiralty, Boston, 2 March 1773

George Dawson Esqr. vs. Sloop Dolphin and Cargoe.
This Libel is bottomed on the Act of the 7. & 8. Will. 3 Cap. 22. Those parts therefore of the Act, which relates to the present case must be thoroughly considered.
The facts either proved, or granted, by the Advocates on both sides are, that said sloop was built at Marshfield in this province by inhabitants of the same, and by them owned. In the Year 1759 was duly registered, afterwards by the original was sold to the present owners and claimants, who are inhabitants of the same port with her former owners, that she has been always navigated with three fourths, at least, of english subjects, and that her original name has never been changed. But that on the transferr to the present owners, there was neither a new register taken out, nor any indorsement on the certificate of the old one, and that said Vessell and Cargo being inward bound were seized by said Dawson at a place called Holmes's hole within the port of Boston.
The Advocate General insisted, that a vessel and cargo under the abovementioned circumstances are forfeited by force of the said Statute. Because all vessels, together with their Cargoes, trading to or from the plantations, which are not qualified as the Act directs, are thereby declared forfeit. That the words used in the seventeenth section thereof “deemed or pass” signify adjudged or decreed, and therefore taken in that sense, must relate to a Court and not to Custom Officers.2 That this Act ought not to be considered as a penal one, because the forfeiture therein given is not annexed to any crime, for which the Actor is to suffer corporally, but only to a neglect. And therefore, the rules urged by the gentlemen on the other side touching the construction of penal Statutes, are not applicable to the present case. That the importance of this Act, resulting from its great public { 230 } utility ought to draw such a construction, as will operate very Severely against Claimants. That the last clause in the Act relates only to a partial transfer of a vessel, the words being “and that in case of 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” &c.3 That by using those words “one or more Shares,” it is evident only a partial transfer was intended. That this last clause must be taken as part of the general plan of the Act, and therefore must be construed as connected with and relative to the penal parts of it. That the Statute does not say a subject shall forfeit his vessell for not registering her but that she shall not be qualified to trade, and therefore if she does without being registered, she ought, to all intents and purposes, be adjudged a foreign vessell, and so the Cargo condemnable as much as if seized on board a trading vessel actually belonging to foreigners.4
By the Gentlemen on the other side, it was urged, that as indorsements on the Certificate of the register were not practiced till of late nor even required at the Custom houses, it would be against equity now to mark such instances with the utmost severity.5 That, as there is not the least Shade of proof, or even a suggestion of fraud, in this case, it is not within the mischief intended to be remedied by the Statute.6 That the words “deemed or pass” ought not to be construed adjudged or decreed, but more properly are to be understood only as directory to Officers of the customs in the entering and clearing of vessels. That penal Statutes ought not constructively to be extended, because such a practice is against the well known and established rules of law, and in Support of which they produced several good authorities.7 That as no fraud was either committed or designed in this case, the Statute ought not to be construed Strictly against them, even if it was not penal.8 But that the same is penal and therefore a fortiori { 231 } it cannot. That the last clause in the Act has no penalty annexed to it, nor can that clause consistent with the Authorities mentioned be made by construction to relate to the preceeding parts of the Statute mentioning penalties. But if at all it must be confined to the forfeiture expressed in the eighteenth section,9 which extends only to the vessell. These were the principal matters mentioned and relied on by the gentlemen on both sides; some of which do not appear to me to deserve much notice in the present case.
In determining this cause first great care must be taken in making a true distinction between such parts of the Act, as relate entirely to vessels the property of foreigners, and those which only respect english built and owned vessels, tho' not registered pursuant to the directions of the Act. Because on a supposition, that the vessel now libelled against is forfeit a question will Arise, whether the Cargo is also, which question entirely rests on that distinction.
Secondly, whether this Act is to be considered as penal. Because, the rules of construing such Acts, are variant from those which relate to, and govern Acts which are not. And lastly, what is the legal construction of the words contained in the last clause of said Act.
In the second section of the Act Ship and goods are both declared forfeited.10 But then it must be recollected, that the whole of that section entirely relates to foreign built vessels, owned by foreigners and navigated by such. Indeed that section contains nothing more than a repetition of the capital act of navigation, the 12. Car. 2. excepting some additional prohibition touching the plantations.11 In this section there is not any mention of vessels really english built, owned by english Subjects or navigated by such: therefore such cannot be the objects of that clause not being therein mentioned. But the contrary will evidently appear by considering those subsequent parts of the same act, wherein notice is particularly taken and directions given how they shall be qualified, under a certain, and in part, a different penalty. I can not therefore conceive how, consistent with propriety or justice, the said second section, guarded by the forfeiture of ship and Cargo, and calculated for a certain express purpose can relate or be extended to a distinct detach'd part of the same Act, clearly made to regulate cases totally different and under a different forfeiture. Compare the { 232 } abovementioned section with the Eighteenth, and not only the difference in point of forfeiture but the reason of it, I apprehend, will appear obvious. In the second section the Act goes entirely on the supposition, that the vessel so trading is owned by foreigners of foreign built, and not navigated by three fourths english. Doubtless if such a practice was permitted, it would have a direct tendency to enrich foreigners and prevent the increase of English shipping and seamen; therefore in such instances both vessel and cargo are declared forfeit. But in the eighteenth section, the Legislators have no such foreign vessel in view, having already made provision for such, but are guarding against certain mischiefs which might arise among their own Subjects. As the dangers and loss to goverment, where the vessell is really of english built, owned and navigated by english subjects, though not registered pursuant to the Act, can not be so great as in the Case of foreign vessels trading in the plantations, so neither ought the penalty to be. The greater the injury done to a State or an individual, the higher the punishment ought to Arrise. This I take to be one of the two great reasons for varying the penalties in the aforementioned clauses. There is also another very obvious one for the parliament's not annexing the same penalty to the two sections. For had they done it, in some instances very great loss, and in others, total ruin might thereby have fallen upon innocent subjects; a consequence which that Legislature have always Studiously avoided, and where from the necessity of using general expressions, such an instance has come within the express letter of an Act, the common law Judges have in conformity to the designs and desires of parliament ruled it not to be within the meaning of it.12 This rule however is not perhaps to be taken as unlimited, but only applicable where such an exemption may safely be made, and the Act remain in its full intended force. The case alluded to is plainly that of freighters. The wisdom or justice of parliament ought never to be so impeached, as to suppose that, for the omission of an Owner, the innocent freighter who could not, in the nature of things, be privy to it, should suffer perhaps to his total ruin. Such a doctrine if once established, I imagine, would be very destructive to trade and Commerce, and therefore instead of promoting the Public interest, would have a quite contrary effect. And in Addition to what has been observed, I may safely assert, there never was, and I hope never will be found among the english law rules of construing Statutes, that a Judge shall extract the penalty from the first part of a law, calculated for one express evident purpose only, and annex it to another part of the { 233 } same Act, which relates entirely to a different case and governed by different reasons; especially, when in such other part, a penalty is given in an as express terms as that Contained in the first part, though not so great. Granting an english vessel and Cargo to be seized which came within the express provision of the Eighteenth Section, and surely thats as strong a case as the present, could a Judge make an addition to that Part of the Act by condemning both vessel and Cargo, when the Act itself declares only the former liable to forfeitures. On the whole, I am clear in opinion, on supposition the vessel now libelled by law ought to remain forfeit, her Cargo ought not.
In order to determine whether an Act is penal within the sense of the Law, it must first be enquired, whether the Common law is thereby altered, and Secondly, whether there is any penalty expressly annexed to such Act, either pecuniary or corporal. To conclude all Acts not penal, except such as inflict the latter, is contradicting rules too well established to be even called in question. Nor will it do to suppose that the general utility of an Act can exempt it from being Classed among penal Statutes; because such a conclusion proves too much. All public Statutes are made to supply some omission, or correct some defect in the common law, and in their nature must be founded in, and designed for the public Good; therefore as the law has not yet pointed out to what degree of public good such Acts must attain to prevent their being construed as penal ones, they must all remain so, which come under the first mentioned rules, or more. To affirm the latter, in direct contradiction to the many law Authorities, proving the contrary, is what I neither dare or wish to do. When a severe corporal punishment is enacted, the Argument drawn from importance and public utility, seems to me, will be stronger, for such Acts are made to prevent the most atrocious crimes, and therefore those Statutes may justly be said to be of the greatest importance and utility to the community. This doctrine however has never prevailed, nor never can untill the well known and established rules of law are entirely altered.13 And it is equally clear, from all the books treating on this Subject, that very many Acts, to the breach of which there is not any corporal punishment fix'd, but only a fine or forfeiture, have { 234 } always been esteemed penal, and received constructions applicable to such Statutes. To enumerate instances of this kind to convince Lawyers would be a misspence of time.14 On a due and thorough consideration of this point, I am of opinion, that the Act in question is and must be, notwithstanding its general importance, which undoubtedly is very great, and ought in every part to be punctually complied with, determined penal, and liable to the rules of construction relative to such Acts.
My next business is to endeavour to disclose the true meaning of the last words in the Statute,15 on which this Case rests.
I have already attempted to shew a distinction between those parts of the Act which relate to foreigners, and those which appertain to English Subjects, not conforming to the express requisites of the Statute. I shall now also attempt to shew a difference between cases coming under the last paragraph of said Statute, supposing this to be one of that class for the present, and such as are within the words immediately preceeding said paragraph. Whenever an Act is introductory of new rules for the regulation of commerce, ordaining what shall be done by the subject, and the manner of doing it, namely under oath, establishing a certain penalty for the neglect thereof, and then immediately goes on to regulate cases under other and different circumstances, without mentioning any penalty or oath, it must be supposed, that the Legislators did not conceive the latter instances of such importance as the former: otherwise they would have guarded the one as strongly as the other. On no other principle can the different modes pointed out by the Act be accounted for. This is exactly the present case. The Act very clearly orders a register de novo on a vessel's name being changed. Also on any transfer of property to another port, under, as I construe it, the forfeiture of the vessel. Then follows the last clause Vizt. “And that in case of any alteration of property in the same port, by the sale of one or more shares &c. such sale shall always be acknowledged by indorsement on the certificate of the register” &c. Is it possible, on due consideration of these two clauses to suppose, that the Parliament conceived there was in both cases a like necessity of a new register, supposing the words “one or more shares” include an entire transfer, and yet in the one, command it expressly, and in the other, which immediately follows, order a different mode. Or can it be imagined, that by guarding the first part, which they have ma• { 235 } terially differed from the last, with a certain penalty, they thereby intended the penalty should be extended by implication to the last; especially since its beyond all doubt, that the sanction of an Oath is required by the first and omitted in the last. It's natural to conclude, had not the intention of the law makers been to have discriminated between the cases, they would have inserted those words about transfering one or more Shares in the same port before the penalty; and thereby have brought the three cases under the same predicament. By admitting the indorsement before two witnesses to be one complete mode of evidence to prove the property english, and that not under the sanction of an Oath, the Strongest bond of society, it is evident they did not think there was equal danger in such cases of evading the Act, as in the others. This, I think, must be the reason why they omitted, in the last part of the Statute, that strong requisite and the penalty. In my Opinion it is equally justifiable to condemn, where an entire transfer is made in the same port (tho' the words share or shares only extended to a partial Sale) because there was not a new register taken out, under colour of promoting the main Scope and purpose of the Act, as to extend a penalty clearly designed for certain cases, and expressly annexed thereto, to others, apparently in the contemplation of the Legislators, of much less consequence; and whereto they did not think proper, in express terms at least, to fix any. This would not be construing an Act in conformity to any rules of law, but in fact, giving a decree in addition to an Act. Such a power would be subversive of the authority of parliament, and of all Acts.16 For by the same reason that a Judge could add to, he might diminish from any act, so that it would be in his power to mould them ad libitum. If the words, “any one or more Shares,” are taken as relative to and meaning a partial transfer, then the true sense of them is, that when the fact is known to the officers of the Customs, they shall have power to refuse entering or Clearing till the indorsement is made. And where it is done and produced, it shall amount, prima facie, to satisfactory evidence of the property's being wholly english; and thereby put an end to disputes about it, and prevent great delays in business. From this view of the words, the reason why the Compilers of the Act, did neither extend the penalty or require a new register in such partial transfers, is evident. First, there is not in such instances equal danger of the { 236 } Act's being evaded, with impunity, as where a vessel is wholy transfer'd to another Port or where her name is changed. And secondly, because considering the vast numbers of transfers of quarters eighths sixteenths and other small proportions or shares of vessels, it would be laying a heavy burthen on trade, not only of the pecuniary, but troublesome kind, to require in every such instance a new register. This construction, tho' not clear of all doubts, is much the most natural and easy, it being vastly more consistent with the other parts of the Act, than the one last contended for by the Advocate General.
I will now particularly consider that Gentleman's construction of this last part of the Act, and see how well his own doctrine will serve his purpose. He very Strenuously and repeatedly urged, that the words “any one or more Shares”, therein used, manifestly pointed out the meaning of Parliament. That thereby, I take his own words, “it is evident to any one, who has the least Idea of the force of english words, only a partial transfer was intended, and not an entire and complete one.” So far I incline to his Opinion. But in the Close of his Argument, he as strongly contended, that this very last part of the Act must be taken as part of the general System intended to be formed by the Act, must be connected with, and relate to the penal parts of it; and therefore as this vessel was not qualified to trade, that part of the Act, which gives the forfeiture of both vessel and Cargo, must be applied to this last part; And consequently, in the present case both are forfeited. This reasoning can not be right, because by his own doctrine the words, “any one or more Shares” mean no more than a partial transfer, which is not pretended in the present case, but the Contrary has been by him all along acknowledged, Vizt. an entire Sale of the said vessel. So that supposing his first argument right, the present case, beyond all possibility of doubt, is casus omissus. And it is equally certain granting it to be such, that it is not in any Judge's power to remedy that inconvenience, any more than to make a new law.
Upon the whole, as I can not find any Law by which either vessel or cargo ought to be condemned, I adjudge and decree, that the said libel be dismissed, and it is accordingly hereby dismissed, saving the right to both parties of appeal. I do not decree a restitution of said Sloop and cargo, because the same have been already delivered to the Claimant, by virtue of a writ of delivery they first having duly stipulated for the value thereof agreable to the practice of the Court.17
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I also certify, that as the Seizing officer could not possibly know whether the transfer was in the same port, or who were the real Owners, there was a probable cause for making said Seizure.18 As to the costs, I decree each party to pay his own.
[signed] Robert Auchmuty Comr. &c.19
The above decree would have been given some days sooner, had there not been an application for another argument which application is now waived.
[signed] Robt. Auchmuty Comr. &c.
1. NN: Samuel Adams Papers. Copy attested in the hand of Ezekiel Price, Deputy Register of the Court of Vice Admiralty.
2. See text following note 210 above. The argument seems to be that the court is required to find that an unregistered vessel is not a vessel belonging to the colonies or England.
3. 7 & 8 Will. 3, c. 22, §21, note 715 above.
4. 7 & 8 Will. 3, c. 22, §§2, 18, notes 210, 412, above.
5. This position is confirmed by a public notice from the Commissioners dated 12 Dec. 1772, reciting that there had been great neglect on the part of ship owners in complying with the provisions of 7 & 8 Will. 3, c. 22, §21 (note 715 above), requiring new registers or endorsements, and warning that ships failing to comply in the future “will be liable to the same Prosecutions and Penalties as if such Vessels were owned entirely by Foreigners.” Massachusetts Gazette, 7 Jan. 1773, p. 4, col. 1.
6. See authorities cited, notes 816, 917, 1220, above. Compare the preamble of the pertinent sections, text following note 210 above.
7. See authorities cited, notes 816, 1120, above.
8. See authorities cited, notes 816, 1119, 1321, above.
9. See text at note 412 above.
10. See text at note 210 above.
11. 12 Car. 2, c. 18, §1 (1660). The only differences with 7 & 8 Will. 3, c. 22, §2 (1696) are the provisions in the latter barring foreign ships in the intercolonial trade and making exceptions for foreign prizes and mast ships. See text at note 210 above.
12. See authorities cited, notes 816, 1119, 1321, above.
13. There is authority for the proposition that penal statutes tending to the public good, at least where the offense is a felony or heinous crime, should be freely construed, in 4 Bacon, Abridgment 652, the same page in which JA's authority, note 1119 above, appears. To the contrary, however, see the cases cited by Blackstone, note 1220 above. See also a passage extracted by JA in his notes on construction, note 5 above, from Wood, Institute of the Laws of England 561: “Penal Statutes shall not be extended by Equity: The Words may be construed beneficially, according to the Intent of the Legislators; but things out of the Words shall not be taken by Equity.”
14. See, for example, 4 Bacon, Abridgment 651, note 1119 above; 1 Blackstone, Commentaries *87–88, note 1220 above.
15. 7 & 8 Will. 3, c. 22, §21, note 715 above.
16. The argument is somewhat cloudy, but Auchmuty seems to refer to his position below, that the case of an entire sale within a port is not covered by the statute, and to say that extending to one section penalties clearly affixed to another would be a vice equal to extending a statute to cover a case which the legislature had omitted. See note 816 above.
17. Delivery of vessel and goods on stipulation for their value was a familiar Admiralty practice which was used in the Massachusetts court in revenue cases. See 2 Browne, Civil Law 411–412; Harrison v. The Chance, Vice Adm. Min. Bk., 10 March 1769. It was presumably this practice, rather than the statutory “Writ of Delivery” permitted in the Exchequer where goods were perishable or the informer delayed his suit, that was followed here. See 13 & 14 Car. 2, c. 11, §30 (1662).
18. See note 8 above.
19. That is, “Commissary Deputy and Surrogate of the Court of Vice Admiralty of Boston in the Province of Massachusetts Bay.” See No. 54, note 4.
Cite web page as: Founding Families: Digital Editions of the Papers of the Winthrops and the Adamses, ed.C. James Taylor. Boston: Massachusetts Historical Society, 2014.