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. 27.1 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 customs where such vessel is registered or enrolled." 2 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

19 U. S. Stats. at Large, 440.

This act is held to be constitutional in The Brig Martha Washington, U. S. C. C. Maine, 25 Law Reporter, 22. Its constitutionality is doubted in The Parker Mills v. Jacot, 8 Bosw. 161; and see cases infra p. 60, note 5.

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 consideration, 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;1 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 in respect to every species of personal property, is quite certain; it is, that an oral sale for a valuable consideration, with delivery of possession, passes the property in the thing sold, absolutely, and is itself a completed transaction, which no writing, however convenient, or even requisite, on other grounds, can make more perfect. If we begin with this rule, the obvious question suggested is, whether this rule applies to shipping also; and the equally obvious answer is, that it must so apply, unless there be some rule or provision of law which makes the exception. The parties, however, at the time of making the contract, may agree that some other and further act shall be done to complete the sale, such as a formal delivery and a bill of sale; and then the transfer is not complete until such act is done.2

Our earlier statutes of registration do expressly make this exception; but only for a specific and exactly defined purpose; and by a familiar rule of law this expression should exclude the implication of any further effect. This question, however, has passed under adjudication; and we have an opinion, cited before, which we regarded as authoritative, that "the registry acts have not, in any degree, changed the common law as to the manner of trans

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

ferring this species of property." But there may be such a rule, derived from the known and established Lex Mercatoria; and this we may gather from a sufficiently ancient, recognized, and universal custom of merchants. We do not, however, find any evidence of such a custom on this point as would have the force of law.

Undoubtedly, as has been already intimated, the usage of merchants in all nations, the repeated statements of writers of authority, and indeed the nature of the property, lead to the inference that a transfer of a ship by a written instrument of some kind is usual and proper. But further than this we cannot go, because we see no sufficient ground for saying that what may even be called the rule of practice in this behalf has anywhere, by mere usage, the force of law. We doubt whether such intimations as occur in Jacobsen's Sea Laws,2- that the writing is indispensable, -are to be taken as literally and exactly true.

Sometimes this is said to be the rule of the English admiralty. In much the strongest case, however,3 Lord Stowell goes no further than to say that "a bill of sale is the proper title, to which the maritime courts of all countries would look. It is the universal instrument of transfer of ships, in the usage of all maritime countries; . . . . it is what the maritime law expects, what the court of admiralty would, in its ordinary practice, always require." But the case did not turn on this question; and these remarks are, to a certain extent, obiter; and if the whole case be examined it will be seen, we think, that Lord Stowell regarded the general question as an open one. Immediately after the words just quoted, he refers to the English statute of registration, which, as we have seen, requires such instrument in writing in the most positive terms, declaring, indeed, that no transfer without it shall be valid. or effectual for any purpose whatsoever, in law or in equity. It cannot, therefore, be surprising to find all the English courts, whether of law or of equity, asserting that any transfer of a ship is incomplete and ineffectual, unless there be a bill of sale.1

They have a reason for this in the stringent provision of their

1 Weston v. Penniman, 1 Mason, 306, 317, per Mr. Justice Story.

Book 1, ch. 2, p. 21.

The Sisters, 5 Rob. Adm. 155.

* See Ex parte Halkett, 19 Ves. 474, 475; Atkinson v. Maling, 2 T. R. 462, 466; Sutton v. Buck, 2 Taunt. 302.

own statute. We have no new reason for it here. And whether the views we have above expressed as to the reason of the difference be accepted or not, it would seem that no court in this coun-. try would be justified in supposing that this difference between the American and the British statutes was merely accidental, or in holding that the American statute was intended to express the same thing as the British, when, its language is so entirely differ

ent.

It is, moreover, to be noticed that the English courts of equity seem disposed to confine the operation of this clause within strict limits. So far as the decisions of this country, out of admiralty, go, we have in the first place very positive declarations of common law courts, that the property in a ship may pass like that of any other chattel, without any instrument in writing. This would seem to settle for us the law on this subject, aside from the statute, or from an admiralty construction or application of them. But we have, in the next place, in 1817, a positive declaration by a court exercising full admiralty powers, that the United States "registry acts have not in any degree changed the common law as to the manner of transferring this species of property.'

"1

Here would seem to be a plain assertion that the common-law rule above stated is in admiralty the rule as to shipping. But the very next sentence is, "To be sure, a bill of sale is necessary to pass the title of a ship; but this does not depend upon any enactment peculiar to our municipal law, but grows out of the general maritime law, which requires such a document as the proper muniment of the title of the ship." It might seem that these passages are to be reconciled only by supposing that the court, by the "common law," mean to include the Lex Mercatoria or "the general maritime law" as a part of it, and that this requirement of a written instrument thus becomes a part of the common law. But, an examination of the whole case, or even of the whole paragraph in which these passages occur, would show, we think, that this was not the meaning of the court. And if it was, it was certainly an obiter opinion, not called for by the facts, nor by the questions raised, nor by the decision, for this distinctly sustains a merely equitable title, resting upon no bill of sale whatever. In one case, the court said: "The difference between the law of Eng1 Weston v. Penniman, 1 Mason, 306, 317.

Philips v. Ledley, 1 Wash. C. C. 226, 229.

land on this point, and the law of the United States, is striking."

Thus far, then, we have no case in any American court, in which the rights of any party are made to depend upon this rule, or are distinctly affected by the assertion of it. But it may seem that a case before Mr. Justice Story, goes this length. It involves directly the question of title to a ship. The plaintiff endeavored to maintain a title to one half of a ship by a merely oral transfer; and he was not permitted to do so. Story, J., saying, "I think that a title to a ship cannot pass by parol, when she is sold to a purchaser ;" and he quotes with approbation the remarks of Lord Stowell which we have cited above. But when we look at the facts in the case, the force of the language is very much abated. We find that the plaintiff had received a bill of sale of the ship to himself and another; and he undertook to show that the bill of sale was in fact intended to pass the property in the whole ship to him alone. But says Story: "The legal title passed to both; and to introduce the parol proof would be to contradict the direct allegations of the deed." This was, of course, made impossible by the most familiar rules of the law of evidence; that is, of the common law, without any reference to the law merchant. The admission of this proof would have materially varied the meaning and effect of a written instrument of title, and that a sealed instrument, by parol evidence. Only to say that this could not be permitted, would have been abundantly sufficient to decide the whole case. So far, therefore, as this case is to be regarded as authority, we must consider the preceding remark of the court as either altogether obiter, or as applicable only to facts like those that the court were then considering.

On the whole, therefore, and as a conclusion from all these premises, we should say that there was no case in America in which a purchaser in good faith of a ship, or a part of a ship, was dispossessed of his property by the operation of that rule; or, in

1 Ohl v. Eagle Ins. Co. 4 Mason, 172, 390. In The Oriole, 1 Sprague, 31, the court said: 66 It is contended that a bill of sale is necessary in admiralty to pass property in a ship. The common-law courts of this State have gone far towards holding that the entire property in a vessel may pass without a bill of sale, but courts of admiralty have required it." No opinion, however, was expressed by the court on the point.