CHAPTER III.

OF THE TRANSFER OF A SHIP BY SALE.

SECTION I.

OF THE SALE OF A SHIP WITHOUT WRITING.

Ir has been already remarked, that a ship is a chattel, and can only be regarded as such by a system of law which divides all property into real, (or land, or of the land,) and personal, which includes whatever is not real. It would seem, therefore, that the sale of a ship should be, so far as that law is concerned, governed by the same rules which are applied to the sales of other personal property. But these rules neither prescribe nor prefer any method or form, nor do they require any special or peculiar evidence of the few things which are essential to a sale of a chattel.

A transfer of real estate has been always a more solemn transaction. It was regulated by somewhat complicated and technical principles, which were adhered to with great exactness. In this country they are, for the most part, certainly, superseded by our statutes of conveyance and record. These require, in general, that every transfer of real estate shall be by deed, which must be entered upon a record that is open to the public. And by adjudication it has been fully determined, but not without some strong reasons to the contrary, that, as the prescribed record is intended only to give notice to a party preparing to buy the land, or take it as security, actual notice or knowledge of an unrecorded deed shall supply the want of record, and have the same effect, so far as concerns the party having such notice or knowledge.1

1 See 1 Story, Eq. Jur. § 397; Greenl. Cruise, Vol. 4, p. 452.

The English Statute of Registry of 26 Geo. 3, passed in 1786, was in force when our own statute of 17921 was enacted. By its 16th and 17th sections it was provided, with much minuteness, that "every alteration in the property of any ship or vessel" should be indorsed on the certificate of registry before witnesses, and should itself be registered; and that at every transfer the certificate of registry should be "truly and accurately recited in words at length in the bill or other instrument of sale thereof, and that otherwise such bill of sale shall be utterly null and void, to all intents and purposes." In speaking of this in Weston v. Penniman, 1 Mason, 317, Story, J., said: "To entitle ships to be registered, and to be deemed ships of the United States, with the privileges and exemptions of such ships, it is necessary that the transfer should be made according to the form prescribed in the registry acts; that is to say, that it should be made by some instrument in writing, which shall recite at length the certificate of registry; but the acts do not declare any other transfer void and illegal, but simply deny to ships transferred in any other manner the privileges of ships of the United States, and deem them alien or foreign ships. In this respect our acts differ from the English registry acts."

It was remarked in a former section, that our statutes of registry copied the English statute substantially, and almost literally, with one important exception. That exception is the omission of the clauses just quoted. This is the difference to which Judge Story refers. It may be stated briefly thus. The English statute makes a transfer of a ship wholly void, if not in writing and recorded; our statute only denies to a vessel transferred without writing or registry the privileges of an American ship. It is very important to determine, if we can, the cause of this difference.

It is impossible, or at least unreasonable, to attribute this difference to accident or inadvertence. The care with which our statute is drawn, the obvious purpose and utility of every other departure from the English statute, and the better adaptation of our statute to our own wants and circumstances, by reason of those departures, forbid the supposition, if it were otherwise ad

1 Ch. 1, U. S. Stats. at Large, 287.

missible, that the framers of our statute did their work with so little thought or care or knowledge as to account for this important difference in this way. These clauses must have been known to the framers of our statute.

It is equally impossible to suppose that these provisions were omitted because they were unimportant and useless, or because we did not need them as much as they did in England. It must be remembered that England had then no system whatever of recording transfers, even of land; we had already gone before her in this respect, and the utility of the change was universally admitted, throughout our country. And yet, even in England, the registry of the transfer of ships was deemed necessary, and no reason existed for it there, which did not exist in equal force here. All this, our legislators of 1792 knew; and, in addition to this, there were those among them who must have been aware of the ancient and universal rule of the law merchant, which asserts the propriety, at least, of transferring a ship by a written document. In view of all these facts, it is impossible to suppose that these important provisions of the English statute were omitted in our own, except intentionally, deliberately, and for what was at that time deemed sufficient reason.

It then becomes desirable to ascertain this reason, if we can. We think it was a doubt whether Congress had any constitutional power to enact these provisions. There is in the Constitution of the United States no provision or expression which could give Congress this power, unless it be the clause in the eighth section of the first article, which mentions, among the powers given to Congress, that which permits them "to regulate commerce with foreign nations, and among the several States." And the question is, whether a just construction of this language could authorize Congress to regulate the sale or transfer by mortgage of our own ships in our own ports. It is true that a ship is an instrument of commerce; and has no other purpose or value. But it cannot be said, that the power to regulate commerce, means a power to regulate the ownership, transfer, and evidence of title of every thing which is used in commerce.

It is true that this section closes the enumeration of powers with the general provision "to make all laws which shall be

necessary and proper for carrying into execution the foregoing powers." But this provision could not have been intended either to enlarge or to define the powers enumerated in the preceding part of the section, but only to give to those powers the fullest efficiency. Perhaps a distinction might be taken, which would bring the ship, after she was enrolled, and as it were, thus delivered up into the control of the United States, within their right to regulate the evidence of title and of transfer; and possibly this might be extended to the ship as soon as launched and completed; leaving her, previously, to the exclusive control of the State in which she belongs.

We are quite clear, that the framers of our statute of registry omitted these peculiar provisions of the English statute, because they deemed it unconstitutional to include them. And this inference is much strengthened by the fact that they did expressly and carefully provide for transfer by writing, certified and registered, so far as they were certain that these provisions related to commerce; that is, so far as related to the privileges, exemptions, or obligations of the ship while engaged in commerce; making such transfer and registry indispensable to her continuing to possess the rights of an American ship. But here they stopped. And we think that they stopped here, because they supposed that they had now exhausted all their authority on this subject derivable from the power to regulate commerce, and were, therefore, obliged to leave all that lies beyond this, as all regulation of title, transfer, and evidence of property in the ship when sold or mortgaged as mere merchandise or security, to the State government, which takes the ship up in all those relations in which it is property only.

Still it may be said, that this was the rigorous and cautious construction which would result from the principle, that the Constitution was an adverse instrument, and therefore to be construed strictly,-but not the reasonable construction which would be justified by the supposition, that the Constitution was an instrument favorable to all parties, and should be, if not enlarged, certainly not restrained by construction; and such seems to have been hitherto the construction of this very clause, in all other

cases.

But this question, which we admit to be a difficult one, has a

very great importance in its reference to the Act of 1850, ch. 27. For this statute has changed, or, at least, has attempted to change, the law on this subject, very materially. It enacts, in substance, precisely those provisions which the Congress of 1792 refused to enact. As the statute is copied in the Appendix, we state here only that it declares that "no bill of sale, mortgage, hypothecation, or conveyance of any vessel, or part of any vessel, of the United States, shall be valid against any person other than the grantor or mortgagor, his heirs and devisees, and persons having actual notice thereof; unless such bill of sale, mortgage, hypothecation, or conveyance be recorded in the office of the collector of the customs where such vessel is registered or enrolled." It might possibly be argued that this statute meets only the case of a transfer of a ship by "bill of sale" or other "conveyance;" and therefore an oral transfer, with delivery of possession, would be as valid as it was before. We should say, however, that the word "conveyance" must be construed as equivalent to "transfer," and that such oral transfer would be void, excepting under the proviso of this statute. Under this proviso, a transfer of any kind, which before the statute was adequate to pass the property in the ship, is now perfectly valid in reference to persons having notice of it. And if the statute be, for the reasons we have presented, or for any reasons, unconstitutional, the law on this subject stands as it did before. It becomes, therefore, important to consider whether any transfer of a ship, in good faith and for valuable considera. tion, without writing or record, would be effectual to pass the property of the ship, either under the exception of this statute, or on the supposition that it is unconstitutional, and therefore void.

In the first place, we consider it certain that a transfer by written document is the ancient, customary, and proper way;2 but more than this may be necessary to make it the only legal way. On this question we must begin by remembering that a ship is personal property, a chattel, capable of delivery from seller to buyer. Now the rule of the common law, which prevails

2 The Sisters, 5 Rob. Adm. 155; Weston v. Penniman, 1 Mason, 306.