parol, although it was objected that the bill of sale should have been produced in evidence, no attempt being made to set up any title elsewhere.

Lastly, is the register primâ facie evidence of ownership in favor of parties to it? In England, a practice of admitting it as such seems, from the language of Lord-Ellenborough, at one time to have prevailed, and at Nisi Prius, Bayley, J., remarked, in the case of Tinkler v. Walpole, supra, "This is very different from the case of a person publicly asserting that he is owner, by the act of registering a vessel in his own name; that may be primâ facie evidence for him that he is owner; because he thereby publicly challenges all persons that he is so." But Lord Ellenborough, in Flower v. Young, denied that such could be the case; the registry amounting to nothing more than the declaration of the party, he remarked, was clearly not admissible in his favor. And the court were of the same opinion in Pirie v. Anderson, supra, Gibbs, J., saying: "It was strongly urged for the defendant, that, because the title cannot be complete without the register, therefore the register shall be primâ facie evidence of the title; that does not at all follow. If the legislature makes an act necessary to complete a title, it does not thereby make that act alone to be proof of the title; if such were the law, a man might make for himself a title to anything in the world. With respect to the dictum of Bayley, J.,” (cited supra,) “I am satisfied that he said that, because he would not take on himself to decide a point which had never been decided, which was not the point raised at nisi prius, and which it was not necessary to decide in that case." The argument, here stated to have been used in favor of the admission of the evidence, has no force in this country, where registry is not made necessary to complete a title; nevertheless, we should consider the question as more open to doubt than these cases left it in England.

In the case of The Mary, 1 Mason, 365, a similar objection was made. But Story, J., held, without reference to its validity, that the defendants were, under the circumstances, estopped from making it by their own acts on record. And it was held by the court in Sharp v. Unit. Ins. Co. 14 Johns. 201, that the registry was not primâ facie evidence in favor of the plaintiffs, whose names did not appear on it, as proof that they were not owners of the ship. But it is to be remarked, that this ruling does not seem to have been requisite to the decision of the case. The question being, whether the plaintiffs should be allowed to make use of the register, to rebut the presumption of ownership arising from their having procured a policy of insurance on a ship in their own name, for the purpose of recovering back the premium. This case cannot, therefore, be considered as of authority otherwise than as a dictum. See also Ligon v. Orleans Nav. Co. 19 Mart. La. 682.

On the other hand, in Weaver v. The S. G. Owens, 1 Wallace, Jun. 359, 365, the court take no such distinction between the effects of the register as evidence for and against those in whose name it stands, but hold generally, that in a question of ownership inter partes it is primâ facie evidence of title in the person in whose name the ship is registered, liable to be rebutted by proof of actual ownership in another, whether temporary or absolute, as lessee or vendee.

See, however, Lincoln v. Wright, 23 Penn. State, 76. The action was brought against the plaintiffs in error for supplies furnished by the defendants for a vessel. The case turned on the point, whether the plaintiffs were owners at the

time the supplies were furnished. There was evidence of a sale prior to the time, but it was shown that subsequently the plaintiffs made oath at the custom-house that they were the sole owners, and it was held that this evidence was admissible. The court said: "A vessel may be sold, and, because the vendor retains the legal title as security for the purchase-money, he has her registered in his own name; a mortgagee may do the same thing, while the mortgagor keeps the possession; or an unconditional sale may be made, and the register be left unchanged. For these reasons, a certificate of the register is no evidence in favor of the person named therein as owner, nor in actions between other parties. It will not establish an insurable interest in the registered owner as against an underwriter, nor will it disprove such interest in the assured, when the policy has been taken for the benefit of other persons. Neither would it be any defence whatever, in an action for supplies against one for whose profit the ship is navigated, to show that she is registered in another name. But all this does not prevent us from saying that a man's declaration on oath is some evidence against him of the facts therein asserted. It is not conclusive, certainly. The defendants were permitted to show, if they could, that they had no actual interest in the ship; but the jury did not think they succeeded, and if they were wronged in this we cannot help it." See The Steamboat Superior, 1 Newb. Adm. 176. In a criminal case, where it is necessary to prove that the person indicted was on board a ship owned wholly or in part by an American, it has been held that the register is not even primâ facie evidence of such ownership. United States v Brune, 2 Wallace, C. C. 264.

VOL. I.

CHAPTER III.

OF THE TRANSFER OF A SHIP BY SALE.

SECTION I.

OF THE SALE OF A SHIP WITHOUT WRITING.

IT 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.

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

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." 1

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 Mr. Justice 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 dif ference 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 admissible, 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, 1 1 Weston v. Penniman, 1 Mason, 317.

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 everything 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 government, within its 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