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 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 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 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 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 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 materially 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 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
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.
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.
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 2 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.
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 7 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.
9. See text at note 4 above.
10. See text at note 2 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 2 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 description begins Matthew Bacon, New Abridgment of the Law, London, 1736–1766; 5 vols. description ends 652, the same page in which JA’s authority, note 11 above, appears. To the contrary, however, see the cases cited by Blackstone, note 12 above. See also a passage extracted by JA in his notes on construction, note 5 above, from Wood, Institute of the Laws of England description begins Thomas Wood, An Institute of the Laws of England; or, the Laws of England according to Common Use, London, 1720; 4 vols. description ends 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 description begins Matthew Bacon, New Abridgment of the Law, London, 1736–1766; 5 vols. description ends 651, note 11 above; 1 Blackstone, Commentaries description begins William Blackstone, Commentaries on the Laws of England, Oxford, 1765–1769; 4 vols. description ends *87–88, note 12 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 8 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 description begins Arthur Browne, Civil Law, and ... the Law of Admiralty, 2d edn., London, 1802; 2 vols. description ends 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).