ERROR from the District Court of Pennsylvania. Upon the record
it appeared, that this was an action upon a bond, dated the 16th of
November 1802, given by Willings and Francis and J. Miller, in the
penal sum of 15, 442 dollars, to secure the payment of 7720 41/100
dollars, being the amount of one half of the duties payable on the
cargo of the ship Missouri, on the 16th of May 1803. The defendants
pleaded, 1st. That the duties on the goods in question amounted
only to 14,036 73/100 dollars, on account of one half of which
(7018 36/100 dollars) the bond was given. And, 2d. Payment. The
plaintiff replied, 1st. That the ship was an American registered
vessel, owned by the defendants, when she sailed from Philadelphia
for Canton, on the 1st of December 1800; that after her departure
she was in part sold to Jacob G. Koch and others, on the 12th of
February 1801; that on making the sale the ship was not registered
anew, nor was there any bill of sale executed reciting her
register; that the goods were imported into the port of
Philadelphia subsequent to the sale, on the 16th of November 1802;
that the amount of the duties was 15,440 82/100 dollars, for one
half of which, payable in six months, the bond was given. 2d. Non
solverunt.
The defendants rejoined, That they admit the sale to Koch and
others, and the importation of the goods after such sale; but
they
Page 4 U.S.
374, 375
aver, that the ship was at sea at the time of the sale, having
her register on board, and that it was not, therefore, in the power
of the defendants to deliver it up at the time of the sale; that on
her arrival, the 15th of November, the defendants did execute a
bill of sale to Koch and others, reciting the register, and the
captain delivered up the register to the collector, whereupon the
ship was registered anew, as the joint property of the defendants
and Koch and others; that, on the 7th of January 1803, Koch and
others re-sold to the defendants, and executed a bill of sale
reciting the register, last mentioned; and that thereupon the ship
was registered anew as the property of the defendants, whereby she
continued an American registered vessel, not liable to foreign
duties, and that the domestic duties only amounted to 14,036 73/100
dollars, &c.
The plaintiffs sur-rejoined, That they admit the ship was at sea
when she was in part sold to Koch and others; buy aver, that she
was not registered anew, nor was there a bill of sale, reciting the
register, at the time of the sale, nor at the time of her arrival.
That they, also, admit that the captain delivered to the collector,
the register of the ship at the time of his arrival; but they
insist that it was long after she had been in part sold, without
being registered anew, &c.; that the registry of the ship, on
the 22d of December 1802, in the name of Koch and others and the
defendants, was made after the re-sale by Koch and others to the
defendants, when Koch and others had ceased to own any part; and
thay they admit that Koch and others, having previously re-sold,
did, on the 24th of January 1803, deliver up the register in their
names, and the ship was then registered anew, as the exclusive
property of the defendants. But they insist, that at the time of
the actual re-sale by Koch and others ( 15th November 1801) she was
not registered anew, nor did they then execute a bill of sale
reciting the register; that the registry of the 24th of January
1803, was made, under colour of a bill of sale executed by Koch and
others to the defendants, long after the re-sale, and they had
ceased to have any interest in the ship; and that at the time of
the sale in part to Koch and others, of the re-sale by them to the
defendants, of the arrival of the ship in the port of Philadelphia,
and of her entry, she had ceased to be deemed a ship of the United
States. The defendants demurred, generally, to the sur-rejoinder;
and the plaintiffs joined in demurrer.
The general question, upon the demurrer; was, whether a
registered vessel of the United States, being sold, in part, to
resident citizens of the United States, while she was at sea,
without a bill of sale reciting the register, and without being
then registered anew, was liable, with her cargo, to the payment of
foreign, or only to the payment of domestic, tonnage and duties, on
her return to a port of the United States? And the argument rested
chiefly upon the terms and meaning of
Page 4 U.S.
374, 376
the 14th section of the registering act, which is in these
words: 'And be it further enacted, That when any ship or vessel,
which shall have been registered, pursuant to this act, or the act
hereby, in part, repealed, shall, in whole, or in part, be sold, or
transferred to a citizen or citizens of the United States, or shall
be altered in form, or burthen, by being lengthened, or built upon,
or from one denomination to another, by the mode or method of
rigging or fitting, in every such case the said ship or vessel
shall be registered anew, by her former name, according to the
directions herein before contained, (otherwise she shall cease to
be deemed a ship or vessel of the United States) and her former
certificate of registry shall be delivered up to the collector to
whom application for such new registry shall be made, at the time,
that the same shall be made, to be by him transmitted to the
register of the treasury, who shall cause the same to be cancelled.
And in every such case of sale or transfer, there shall be some
instrument of writing, in the nature of a bill of sale, which shall
recite, at length, the said certificate, otherwise the said ship or
vessel shall be incapable of being so registered anew. And in every
case, in which a ship or vessel is hereby required to be registered
anew, if she shall not be so registered anew, she shall not be
entitled to any of the privileges or benefits of a ship or vessel
of the United States. And further, if her said former certificate
of registry shall not be delivered up, as aforesaid, except where
the same may have been destroyed, lost, or unintentionally mislaid,
and an oath or affirmation thereof shall have been made, as
aforesaid, the owner or owners of such ship or vessel shall forfeit
and pay the sum of five hundred dollars, to be recovered, with
costs of suit.'
In the District Court, judgment was rendered for the United
States. [
Footnote 1]
Page 4 U.S.
374, 377
The cause was again argued in the Circuit Court, on the 6th and
7th of May 1804, by Dallas (district attorney) for the United
States, and by Rawle and Lewis, for the plaintiffs in error.
In order to obtain a continuance of the cause, at the return
term, the defendants filed the following affidavit: 'Thomas W.
Francis, one of the above defendants, being duly sworn, deposeth,
that an error has been committed in the liquidation of the duties
demanded on the above bond, for which this suit is brought,
inasmuch as the sum of seven thousand seven hundred, and twenty
dollars and forty-one cents is thereby demanded for dates on goods,
per the ship Missouri, whereas the sum of seven thousand and
eighteen dollars and seventy-three cents only was due for the same,
the said ship, the Missouri, being a registered ship, belonging to
citizens of the United States, and not a foreign, or unregistered
ship, or liable to foreign duties. And the said Thomas W. Francis
further deposes, that the above errors have been notified in
writing to the collector of the district of Philadelphia, before
the commencement of this present term, being the term to which the
above action was brought, and that this deponent did, in behalf of
himself and the other obligors in the said bond, on the sixteenth
day of May last, tender to the cashier of the bank of the United
States, where the said bond was deposited for collection, the last-
mentioned sum of money (seven thousand and eighteen dollars, and
seventy- three cents) being as this deponent verily believes the
whole amount thereon due: that the said cashier of the bank
refusing to receive the same, this deponent, in behalf of the
aforesaid, tendered the same sum of money to the collector of the
district of Philadelphia, on the seventeenth day of the same month,
being as soon as he could ascertain by inquiry that the said bond
had been returned from the bank of the United States to the
collector. That the said collector also refused to receive the
same; that this deponent afterwards, to wit, on the 7th of July
last, did pay to the attorney of the district of Pennsylvania the
said sum of 7018 dollars, 73 cents, say seven thousand and eighteen
dollars and seventy-three cents, on the terms and conditions
expressed in a receipt whereof a copy is hereunto annexed.'
Dallas (the district attorney) insisted, that the cause assigned
for a postponement of trial, in the affidavit, was not an error in
the liquidation of the duties; for, the manifest policy and intent
of the law, were to enforce a payment of the revenue, against every
plea, or pretext, except a plain error in fact; and, here, no error
in the calculation of figures, no accidental error in the rate of
duties, was assigned; but a defence was suggested, upon a
principle, which would equally apply to a charge of foreign duties,
made in consequence of any other description of forfeiture, and
disability, under the acts of congress; though the secretary of the
treasury was vested with a special power of remission and
mitigation in such cases.
Page 4 U.S.
374, 378
For the United States. The general question is, whether the
cargo of the ship Missouri was liable to the payment of foreign
duties, on the 15th of November 1802, when she returned to the
After argument, however, (Rawle and Lewis being for the
defendants) the District Judge decided, that the cause assigned for
a postponement, was within the terms and meaning of the act of
congress.
The opinion of the Court, on the principal question, was
afterwards delivered in the following terms:
PETERS, District Judge. This is a suit commenced on a
custom-house bond, for one half the duties due to the United
States, by the defendants Willings and Francis on goods imported in
the ship Missouri from Canton. The bond is in the usual form, dated
the 15th of November 1802; and was given with other bonds for
duties, as charged at the custom-house, amounting to 15,440 dollars
82 cents; being the sum chargeable on goods imported in a ship
belonging to a foreigner. For the facts I refer to the pleadings on
file. The real point in dispute is, 'Whether the goods imported in
the ship Missouri are liable to foreign or domestic duties?' There
is no doubt, and by the joinder in demurrer it is allowed, that the
ship, when the goods were laden and ever since, did belong to
citizens of the United States. And if they had been the same
citizens to whom the ship belonged at the time of her clearing out
at the American custom-house, before her departure for Canton, only
the domestic duties could have been charged. These would have
amounted to 14,036 dollars, 73 cents, causing a difference in
favour of the defendants, Willings and Francis, of 1404 dollars 9
cents. This sum only is in dispute, at this time, though, it is
said, the defendants are affected by the point in controversy, to a
considerable amount. But the difficulty is created by a transfer
having been made by Willings and Francis the original owners to
Jacob Gerard Koch, and others, also citizens of the United States,
of a part of the ship Missouri while at sea and on her voyage. No
bill of sale reciting the register of the ship was made till after
her arrival at the port of Philadelphia. A parol sale was made,
which, though legal, bond fide, and effectual, as between the
parties, was not so conformable to the law of the United States, as
to entitle the vendees to have their names inserted in a new
register. Finally (after the sale by parol before mentioned and a
resale to the original owners) a bill of sale was given agreeably
to law, and the vessel obtained a new register, though the duties
remained as at first charged at the custom house. T. W. Francis at
the time of the disclosed all the circumstances, and the whole
proceedings are bona fide and without fraud, or any improper
intention. The amount having been liquidated at the custom house as
for foreign duties, and the bond before mentioned, among others,
given for their amount, a suit was commenced in this court thereon.
At the return of the writ, the attorney of the district moved for
judgment agreeably to the act of congress. The defendants filed an
affidavit in legal form requesting, a trial or a continuance,
because they alleged there had been an error in the liquidation of
the account at the custom house, owing to foreign, instead of
domestic, duties having been charged. On mature consideration, and
after diligent and careful examination into the technical meaning
of the word 'liquidation,' as explained by the best authorities,
both legal and philological, I was of opinion that the Court was
bound to comply with the defendants request. The authority of the
Court to give an opportunity for legal investigation, is grounded
on the true meaning of this word liquidation, which comprehends the
principles, as well as arrangements, of accounts.
Page 4 U.S.
374, 379
port of Philadelphia. It will be attempted to maintain the
affirmative on two grounds: 1st. That she had not then a register
in force. 2d. That she was not then entitled to be registered anew.
The cause has been ably argued on both sides. The whole controversy
turns on the 14th section of the act entitled 'an act concerning
the registering and recording of ships and vessels,' passed the
31st of December 1792. A very extensive range has been taken by the
counsel on both sides of the question. The principles, intent, and
policy, of the act, have been investigated with much ability and
talent. I do not hesitate to say, that to me this question, on the
words of the section; is difficult, though one of the counsel for
the defendants seems to consider the case as perfectly clear. I do
not give an opinion upon it with confidence, though my duty
requires it, and I must decide. Were I in a situation to say what
the law ought, in this case, to have been, I should have a clear
conviction and would, accordingly, decide in favour of the
defendants. I should be warranted in this opinion by the law as it
now is. The knotty part of the question, is that affected by the
time when, in the 14th section. 'When any ship or vessel, which
shall have been registered pursuant to this act, or the act hereby,
in part repealed, shall, in whole, or in part, be sold or
transferred to a citizen or citizens of the United States, or
should be altered in form, &c.' On the part of the defendants
it is insisted, that the word when means any time after the arrival
of the vessel, at the port where a new register can be legally
obtained. And, according to Lord Coke's opinion, when one is bound
to do an act, but no time fixed, the party has his whole life time
allowed to perform it. Authorities were produced to show, that in
the construction of even penal statutes, the spirit, and intent,
and policy of the law might be called in aid, where words are
doubtful. That it is impossible to procure the new register, until
the certificate of registry is delivered up. That this cannot be
done before her return from her voyage; and, until it is done,
provided it to accomplished before her proceeding on another
voyage, she is still to be considered as holding her original
character; and, therefore, not subject to the disabilities attached
to a foreign ship. That if it were otherwise, the law would be
oppressive on our own citizens, although its policy is grounded in
a system to serve them, while it prohibited foreign ships from
trading, on terms so beneficial as those of our own nation. That if
the word 'when' could not be satisfied, but by a new register,
procured at the time of the sale, it would amount to an unjust and
burthensome exclusion of all sales to citizens, of our vessels, in
whole, or in part, while at sea, or on their voyages; to the great
injury of our commerce, and ruinous embarrassment of our merchants,
whose necessities, or plans, required transfers of their vessels,
either to relieve them from pressures, or enable them to form new
speculations. That such a rigorous construction might be
justifiable, when ships in port, were sold or transferred, because
the certificates of registry were attainable. But as the law does
not compel parties to impossibilities (lex non cogit ad
impossibilia) it is otherwise when ships are at sea. It satisfies
the law, if the new register is applied for when the temporary
impracticability is removed. True it is, that foreigners can never
obtain new registers, under transfers, or sales from American
citizens. All the precautionary measures of the law are aimed at
them. The oath at the time of entry must disclose the owners; or
foreign character will be presumed. This shows that if the oath is
taken, and no foreign ownership appears, it is all the law
requires, to establish the American character. But the character of
the vessel sold by one American citizen to another, was not even
suspended, by the clause under consideration, until after her
departure, from the port where at she could have obtained a new
register, on her arrival from the voyage, during which the sale or
transfer was made. It is, therefore, concluded that domestic, and
not foreign, duties should have been charged on the goods, imported
in the ship in question. And that as to the law of the 3d March
1803, it neither has or should have any influence on a precedent
transaction. It only fixes the time when a new register must be
applied for, which was before uncertain. It also gives power to the
secretary of the treasury to remit penalties and forfeitures and
remove disabilities, in past as well as future cases.
Page 4 U.S.
374, 380
1st. The discussion does not turn upon the fact of American
ownership, but upon the legal existence of an American
register.
On behalf of the United States it was contended, that as no time
was fixed in the law for renewing the register, it must be done
instanter. Where a disability is the consequence, it cannot be
removed till the renewal is completed. If it cannot be done at the
moment, owing to impediments not then to be overcome, the party
labouring under them must suffer temporary inconveniences, which it
was in his power to foresee. In England, where the character of the
ship is not altered, an arrangement was made of sending information
of the transfer immediately to the custom house. According to
British authorities, though they relate only to the validity of the
transfer as between the parties, it is said 2 East, 404 that 'if
the act of parliament (dictating this measure) were to be
considered as giving an indefinite time (or even a reasonable time,
after the execution) for the compliance with its requisites; it
would enable a transfer of property to be made to foreigners, who
might remain concealed owners, until the return of the vessel to
her port, which might not be for a great length of time.' No time
being fixed in the 14th section, it must be instanter. A number of
extracts from the laws of the United States were produced to show,
that all these laws required hthe strictest attention to their
injunctions, under the severest penalties and forfeitures. That it
is not denied that one citizen may sell and transfer to another a
ship at sea. But if it is done, the sale is subject to
inconveniences on which the parties ought to calculate, or take the
consequences. The law is or ought to be known to every body. Those
who are shippers of goods should make themselves masters of the
subject, both as it relates to sales to citizens and to foreigners,
or suffer any inconveniences arising from want of caution. It was
asserted, that the fiscal officers had uniformly construed the law
as it is now contended for. The congress passing this law meant to
exclude sales at sea, to prevent the use of our vessels covertly by
foreigners. The register of the Missouri was vacated on the 12th
February 1801. She was from that time subject to the disabilities
of a foreign ship, till her character was revived. And that could
not be done till after the 21st December 1802, when the legal bill
of sale was made. No subsequent transaction can by relation operate
on the duties chargeable, though the character of the ship may be
restored. If the foreign character of the vessel existed at the
time of the liquidation, no ex post facto proceedings can alter the
then existing circumstances. There is no distinction in the law
between a sale in port, or one at sea. An immediate application for
a new register is required in both cases. If it cannot be had on a
sale at sea, it shows the law meant to exclude the vessel for the
time from her American character: eo instanter, that the property
is changed, her character ceases, or is suspended, according as she
is sold to a foreigner, or a citizen. A number of British cases
were produced; and said to be analogous, though in that country
they related to change of property. In this the principles apply to
change of character. 3 Term Rep. 406. 3 Brown Ch. Rep. 571. 5 Term,
710. 2 East, 399. 404. Bosanquet and Puller. Parker, 215. There is
no distinction in the laws of the United States, as they relate to
a sale either to a citizen or a foreigner, in the point of time, in
which the American character ceases to operate. In both cases, the
cessation is at the moment of sale. The citizen may revive it, but
the foreigner never can.
The law of March 1803, was produced to show a legislative
construction. And the custom of the fiscal offices was said to be a
contemporaneous and continued interpretation. Although I may not
have done justice to the arguments of the counsel on either side, I
have thought it proper to recite them in a summary way, to show the
conflict of opinion, on the subject.
Page 4 U.S.
374, 381
The object of the law was to secure to American citizens, the
exclusive benefit of American tonnage and navigation. The means
employed were directed, to ascertain, first, the fact that the
vessel was American built; and, secondly, to trace every change of
ownership, in whole, or in part. And the means being suited to the
object, all theories, all arguments ab inconvenienti, must yield to
the positive terms of the law, in this instance, as in numerous
other instances of forfeiture under the navigation and revenue
laws. In order to ascertain the changes, or transfers, of property
considerations respecting the transfer to an alien, whether the
vessel was in port, or at sea, on the one hand; and, on the other
hand, respecting the transfer to a citizen, whether the vessel was
in port, or at sea, naturally occurred. Now, no American vessel,
wherever she may be, if sold to an alien, can be registered anew.
In England a bill of sale to an alien is void, without the consent
of three-fourths of the owners, indorsed upon the certificate. In
America there is no such provision; but still, upon a clandestine
sale of a part owner, the innocent owners are protected to the
amount of their interest in the vessel. 4 vol. Acts Cong. 11.
Abbot, 45. 13 G. 3. c. 26. 2 vol. Acts Cong. p. 131. s. 16, 17. 7.
Ab. 30. 26 G. 3. c. 60. s. 15. Again: An American vessel, if sold
even to a citizen, must, upon every sale, in whole, or in part, be
registered anew; the old register must be surrendered; the bill of
sale must be in writing, containing a recital of the register; and
on every entry, at a port of the United States, the mesne transfers
must be disclosed. 2 vol. p. 131. s. 14. 17. In England a distinct
provision is made for cases, in which vessels are sold, when in
port; and for cases, in which they are sold, while at sea. For the
former, it is required, that an indorsement shall be made on the
register; or that the vessel be registered anew, at the option of
the remaining owners, without which the sale is void. 7 & 8 W.
3. c. 22. s. 21. 34 Geo. 3. c. 68. s. 15. 21. And for the latter,
it is required, in order to render the sale valid, that the bill of
sale shall recite the register; that a copy of the bill of sale be
delivered to the commissioners; that notice of the transfer be
given at the ship's port; and that the indorsement be made on the
register, when the ship returns. Ibid. [381-Continued.]
But in America, the only provision in the case of a sale of a
vessel at sea is contained in the 14th section of the law: 2 vol.
p. 131. while the sale of a vessel in port is anxiously guarded as
well by that section, as by the 14th, 11th, and 12th sections. The
registering bond does not embrace the case of a sale while the
vessel is at sea; the 17th section only requires a disclosure of
the fact, without declaring any consequence; and, in short, it is
only in the 14th section, that any provision is made for a formal
bill of sale, for a surrender of the old register, or for the
taking out of a new one. And yet, the policy which prescribes such
guards against unlawful transfers, while a vessel is in port,
operates more forcibly in the
For myself I declare, that, although the interpretation given on
the part of the United States, is not consistent with my ideas of
what the law should have been, I do not see that I am authorized
judicially to pronounce that it was not, as on the part of the
United States it is contended to have been, at the time of the
transaction, which is the subject of discussion. It appears to me,
that the congress, enacting the law of 1792, in their zeal to
exclude foreigners, did not see, or chose to think lightly of, the
inconveniences to which, in such cases, as the one now before me,
they subjected our own citizens. It also seems to me a case
omitted, either accidentally, or with design. The legislature alone
were competent to remedy the defect. And they have done this in
cases occurring after their act of March 1803. In the department in
which I am placed, I am not competent to give relief; or by
interpretations of supposed spirit and intention, supply omissions,
or add to the provisions of the then existing law. In cases
attended with such unmerited penalties, it is consolatory that the
laws of our country have not left the parties without protection.
The congress of 1803, sensible of the hardships consequent on a
rigid construction of the former law, have specially and clearly
authorised the secretary of the treasury to remit 'any foreign
duties, which shall have been incurred,' by reason of disabilities,
happening under the former laws, recited in the act of March 1803.
There is no doubt in my mind, that this (the foreign duties having
been incurred under the former laws, by a temporary disability and
incapacity to obtain a new register) is a case proper for the
deliberation of the officer vested with the power of mitigating or
dispensing with the severity of fiscal laws. He may (if he so
inclines under the circumstances stated to him) give the relief,
which the austerity of judiciary duty disables a court from
affording. Although this is my view of the subject I think it a
hard case, and that it ought not to rest on my opinion. I shall
deem myself bound to give every facility to an appeal. If other
cases, depending on the same point, occur, I shall, on payment of
the undisputed part of the demand, suspend judgment (or grant it on
terms) for the contested sums, until the opinion of a superior
court can be had; if the parties affected shall choose to take that
course.
Let judgment be entered for the sum now due to the United
States. I understand that the domestic duties in part of the bond
have been paid.
Page 4 U.S.
374, 382
cases of a transfer, while a vessel is at sea. The legislative
jealousy of sales abroad, is manifested, indeed, by the provision,
which disqualifies citizens, resident is foreign countries (with a
few exceptions) from being holders of American registered vessels.
2 vol. 132. s. 2. 134. s. 4. Then, if the policy of the law is
general, so are the words of the 14th section of the act, embracing
every sale of a vessel, in whole, or in part, at home, or abroad;
and, to preserve the American privileges of the vessel, the
requisites of the section are, a new register on the sale, a
surrender of the old register, and a bill of sale, reciting the
register. On the sale of the Missouri, to Koch and his associates,
her old register ceased to be in force. A new one might be
obtained, provided, at the time of applying for it, the old one was
surrendered, and a bill of sale, in due form, was produced: but,
after vacating the old register by a sale, the ceased to be
privileged, until a new register was obtained. A formal bill of
sale is a sine qua non, in every case; and, emphatically, it is
necessary in the case of a sale, while a vessel is at sea, as the
act of congress provides no other guard against an unlawful
transfer. Besides, why should the 17th section merely require, upon
the entry of a vessel from abroad, a disclosure of the fact,
whether there has been any antecedent change of ownership, if it
was not to bring the case within the provisions of the 14th section
of the act? And if a vessel sold at home, is subject to the rigor
of all the regulations of the 14th section, on what principle can a
vessel sold abroad pretend to an exemption? Is it not more within
the policy, spirit, and language, of the law, to say, that the
vessel sold abroad, shall, like the vessel sold at home, lose her
privilege upon the sale; and as the danger of unlawful sales is
greater abroad, than at home, she shall remain unprivileged, until
the actual renewal of her register? In illustration of the argument
on this point, the following authorities were cited: 3 T. Rep. 406.
3 Br. Ch. 571. S. C. 5 T. Rep. 710. 7 T. Rep. 306. 2 East, 399. 1
Bos. & Pull. 483.
2d. Nor was the Missouri even entitled to be registered anew, at
the time of her return to the port of Philadelphia. There did not
than exist a bill of sale, reciting the register; and the recital
might as easily be made from the record at the custom-house, as
from the certificate of registry carried with the vessel.
The construction now contended for, has uniformly prevailed in
the treasury department; and contemporaneous construction ought to
be regarded in deciding upon a doubtful law. Park, 215. Legislative
construction is, also, in favour of the United States, for the very
case of a vessel sold while at sea, has been specially introduced
into the system; 6 vol. 223. s. 3. the power to remit the foreign
duties incurred by such sale has been vested in the secretary of
the treasury; and legislative construction, of a legislative act,
where the words are doubtful, ought to be conclusive Parker,
217.
Page 4 U.S.
374, 383
For Willings and Francis. In the present case, there is no
suggestion of alien ownership, or mala fides of any kind. The
meaning of the legislature should, therefore, be perfectly clear,
before a decision inflicting, in effect, a heavy penalty, on the
plaintiffs in error, is pronounced. The general policy of the law
is, to give an advantage to the American citizen; and, if its
language is at all obscure, he is entitled to the most beneficial
interpretation. In this view of the controversy, the recapitulation
of a few plain rules, will lead to a favourable result. 1st. A
vessel can have but one register at the same time. 2d. The
certificate of the registry is delivered to the master of the
vessel, when he leaves the port, and must be deposited at the
custom-house upon his return. 3d. The register remains in force,
until it has been legally vacated, or cancelled. 4th. On a change
of property, whether in whole, or in part, a new register must be
taken out; but no new register can be granted until the old one is
surrendered. 5th. The execution of a bill of sale, reciting the
register, will not authorise the granting of a new register,
without such surrender of the old one; but both must concur for
that purpose.
In no part of the law is a particular time prescribed, either
for the execution of a bill of sale, or for the application for a
new register. The 14th section amounts to nothing more, than a
declaration, that a vessel, which has been sold, in whole, or in
part, shall not enjoy the American privileges, until she is
registered anew; but the word 'when' is not used as an adverb of
time; nor does not the section require, that the vessel shall be
registered anew, at the moment of the transfer. If, therefore, the
bill of sale is executed, and the old register surrendered, when an
application is first made for the enjoyment of American privileges,
the words and policy of the law are satisfied; nor will the court
go beyond the words of a law to create a forfeiture. 1 Bos. and
Pull. 483. 19 Vin. Abr. 512. pl. 8, 9. 3 T. Rep. 401. 2 East, 399.
The 17th section of the act, however, seems to fix the sense of the
legislature; for, it obviously contemplates the disclosure of a
transfer, while the vessel was at sea; and if the oath, which it
prescribes, is truly taken, there is no forfeiture of her American
character.
The doctrine contended for, on behalf of the United States,
would introduce the greater mischiefs. Could congress mean, (in an
act, too, for the benefit of American tonnage and navigation) so to
tie up the property in ships, that, while they are at sea, they
could not be sold, without incurring a forfeiture of their
privileges? And is it consistent with justice and reason, that the
innocent shippers of a cargo on board an American vessel, should be
taxed with the payment of foreign duties, in consequence of
successive transfers, to which they were neither parties, nor
privies? To these inconveniences, the claim of foreign duties, in
this case, adds the reproach, that congress has required
Page 4 U.S.
374, 384
an impossibility; to wit, the immediate surrender of the
register at the custom-house, while, in fact, it was on board of
the vessel at sea. As to a contemporary construction, it is not
clearly and uniformly shown, in favour of the adverse doctrine;
nor, if it were, would it prevail against the plain words and
obvious meaning of the law. And, as to a supposed legislative
construction, of the act of the 2d of March 1803 (6 vol. 223. s. 3.
s. 4.) the act is merely affirmative; and even if it were
declaratory of the legislative opinion, upon the previous state of
the law, it could not be binding upon the judges, who must exercise
their own judgments upon the law itself, independent of legislative
exposition.
WASHINGTON, Justice. Although the pleadings, in this case, are
lengthy, it has been agreed by both parties, that the only
question, to be considered and decided, upon the whole record, is,
whether the cargo, imported in the ship Missouri, is subject to the
payment of foreign, or of domestic, duties? By the first section of
the 'act concerning the registering and recording of ships, or
vessels,' passed on the 31st of December 1792, it was provided,
that all vessels, registered pursuant to that law, should be
denominated and deemed vessels of the United States: and all
vessels of the United States, are entitled, by law, to certain
benefits and privileges, denied to foreign vessels; so long as they
shall continue to be wholly owned, and to be commanded, by a
citizen, or citizens, of the United States. The ship Missouri was a
duly registered vessel of the United States, and has always
continued to be owned, and commanded, by citizens. She was,
therefore, entitled to the benefits and privileges of her American
character, when she arrived at the port of Philadelphia, in
November 1802; unless the partial sale made to American citizens,
while she was at sea, deprived her of that character. Whether the
transaction referred to, produced such an effect, may, I think, be
decided upon a joint consideration of the fourteenth, and first
sections, of the registering act alone; though other sections will
afford fair ground for reasoning and illustration. The 14th section
is composed of several sentences, which must be distinctly, as well
as collectively, considered, to ascertain the general meaning and
result. The first sentence declares, that when a registered vessel
is sold to a citizen, she shall be registered anew, by her former
name, or she shall cease to be deemed a vessel of the United
States; and that her former register shall be delivered up, at the
time of applying for a new one. The second sentence declares, that
in every such case of sale, or transfer, there shall be a bill of
sale, reciting, at length, the certificate of registry, otherwise
the vessel shall be incapable of being registered anew. And the
third sentence declares, generally,
Page 4 U.S.
374, 385
that in every case, in which a vessel is required to be
registered anew, she shall not be intitled to the privileges of a
vessel of the United States, if she is not so registered.
It is difficult to conjecture, why, in the first sentence, the
want of a new register should be declared, within a parenthesis, to
deprive a vessel of her American character; and that, in the third
sentence, the same effect should be again declared, for the same
cause. The latter declaration, however, is obviously tautology:
for, if the former declaration can be said to have destroyed the
privilege, eo instanti, when the sale was effected; it was useless
and superfluous to repeat, that the vessel should not, at any
subsequent period, be entitled to enjoy it. The clear meaning,
however, of both sentences, appears to be, that the vessel should
lose her American privileges, not simply upon the sale, but upon
the neglect to obtain a new registry, after the sale. It is here,
then, material to inquire, in what manner, and on what terms, a new
registry can be obtained? A bill of sale, reciting the old
certificate of registry, must be produced to the collector. The old
certificate of registry must, also, be surrendered. Now, though a
bill of sale might be formally executed, in the absence of the
ship; yet, the ship is bound, by law, to carry the certificate of
her registry with her; and, consequently, it is impossible for her
owner, to surrender that instrument to the collector while she is
herself at sea. If, however, the surrender of the certificate must
be made, or the privilege must be lost, it is manifest, that the
law either requires the performance of an imposibility (which is
not hastily to be imputed to the expression, and never to the
intention of a law) or it prohibits, in effect, the sale of a ship,
at sea, by one of our citizens, to another.
There is no part of our navigation system, that expressly avows
this to be the intention of the legislature; and from what
principle of public policy can it be inferred, or presumed? The
cargo is not liable to the claim of foreign duties, until an actual
sale of the ship; and why should the owner of the cargo lose his
privilege, on account of the sale, which is an act of the owner of
the ship alone? Or be punished as for a fault, on account of the
neglect of the owner of the ship, to take out a new register; an
omission which the owner of the cargo can neither prevent, nor
supply? Even, however, with respect to the ship, why, I repeat,
should the privilege be lost, and her owner punished as for a
fault, in omitting to deliver an instrument to the collector on
shore, which the law directs to be kept on board her at sea? A
consequence more injurious, would not proceed from a sale to an
alien, and yet, in the case of a sale to an alien, the act of
congress declares the forfeiture of the American privilege in
express words; as being incurred, eo instanti, on the sale; but no
such declaration is made, in the case of a sale to a citizen.
Page 4 U.S.
374, 386
It appears to me, that the fourth sentence of the 14th section
of the act is, also, important; for, it declares, that 'if the
former certificate of registry shall not be delivered up as
aforesaid, the owner, or owners of the ship, or vessel, shall
forfeit and pay the sum of 500 dollars:' And thus, if the
consuruction contended for, by the attorney of the United States is
correct, the law not only prohibits the sale of a vessel at sea, by
one citizen to another on pain of forfeiting, at the moment of
sale, the privileges of the vessel; but subjects the owner to a
penalty, although it is physically impossible, that he should do
the thing, for the omission of which he is to be punished.
But an American vessel does not cease to be entitled to her
privilege, any more by the act of sale, than by the act of altering
her form, or burthen; both cases being embraced by the provisions
of the 14th section. Let us suppose, therefore, that the
construction of the vessel should be altered, either in the port to
which she belongs, or in any other port: would she lose her
privilege, before the owners could have an opportunity to apply for
a new registry? And if not, why should the privilege be lost,
before an opportunity occurs to make the application for a new
registry, in the case of a sale? I can perceive no reason for a
distinction.
As to the provisions of the 17th section, they are designed to
compel a discovery of any transfers of a vessel, which may have
been made, during her absence from the port; in order that it might
appear, whether she continued to be a privileged vessel of the
United States. If it appeared, that she had been transferred to a
foreigner, her privileges were forfeited, from the moment of
transfer; and if it appeared that she had been sold to a citizen,
the officers of the customs were enabled, by a knowledge of the
fact, to exact the foreign duties, in future, should no application
be made for a new registry.
I am, upon the whole, of opinion, that the appellants are not
liable for higher duties, than are payable by vessels of the United
States; and, consequently, the judgment of the District Court must
be reversed.
Judgment reversed. [
Footnote
2]
Footnotes
Footnote 1 Before the
decision of the District Court, on the principal question, a
preliminary point, of some importance, was determined. By the 65th
section of the impost law, (4 vol. 386, 7.) it is provided, that
'where suit shall be instituted on any bond for the recovery of
duties due to the United States, it shall be the duty of the Court,
where the same shall be pending, to grant judgment at the return
term, upon motion, unless the defendant shall, in open Court, the
United States' attorney being present, make oath, or affirmation,
that an error has been committed in the liquidation of the duties
demanded upon such bond, specifying the errors alleged to have been
committed, and that the same have been notified in writing to the
collector of the district, prior to the commencement of the return
term aforesaid. Whereupon, if the Court be satisfied, that a
continuance until the next succeeding term, is necessary for the
attainment of justice, and not otherwise, a continuance may be
granted, until next succeeding term, and no longer.'
Footnote 2 This judgement
was affirmed by the Supreme court, in 4 Cr.48.
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