Editorial Note
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 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 5. 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); 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 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, 387, 389–390 (Mass. Vice Adm., 1763), affirmed sub nom. The Freemason v. Bishop, 55, 167 469 (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 7 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,” 84 263 (1930).
3. See note 17 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 19 below.
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 8–13 below. Adams Papers, Microfilms, Reel No. 185. In all probability these notes were made in preparation for this case.
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 10. It is usually held that the Act of 1764 marked the introduction of this privilege in the colonies. See 50–51; 179–184; 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 4 536–538.