
    Commonwealth versus Jonathan Douglas.
    Fishermen engaged in the cod fishery on board a vessel of more than twenty tons, du.y licensed, and having signed an agreement required by the laws of the United States, are not liable to do duty in the militia, notwithstanding the statute of this commonwealth of 1814.
    The respondent having been adjudged by a justice of the peace for this county to pay a fine for neglecting to attend a muster of a militia company in which he had been enrolled as a private soldier, sued a writ of certiorari, to procure the proceedings before the justice to be quashed.
    *It was agreed, at the trial before the justice, that [ * 50 ] Douglas was duly notified to appear on the muster day, which was the 4th of May, 1819; that the captain and clerk of the company were duly qualified; that Douglas was, at the time he was notified, and at the time of the muster, master of a schooner of twenty-six tons, duly licensed for the cod fishery, and had entered into an agreement with the crew of the schooner, conform-ably to the law of the United States; that he was actually at sea on the said 4th day of May, and so continued until the 7th of the same month; and that he never applied to the captain of the said company for an excuse or remission of the said fine.
    
      Andrews and Cummings, for the respondent.
    By the constitution of the United States, the power of organizing the militia is vested in the general government; and in execution of this power congress have, by an express act, exempted from militia duty “ all mariners actually employed in the sea service of any citizen or merchant within the United, States” 
      . By another act , seamen are subjected to certain penalties and forfeitures, if absent from their vessels; and by another act , those penalties are extended to fishermen. If, then, they are subject to the same restrictions, they must be entitled to the same exemptions, or the law requires from them incompatible duties. In England, fishermen are considered as seamen, and, as such, liable to impressment 
    
    
      Nash, for the commonwealth,
    insisted that fishermen, employed as the respondent was, in the boat fishery, are not exempted from militia duty, either by the laws of the United States, or by the laws of this commonwealth. The statute of 1814, c. 63, expressly makes fishermen liable to do duty in the militia; and if it should be objected that the state cannot make those liable, whom the United States have exempted, it is enough to answer that this law has been recognized, as good and valid, by a decision of this Court . The case referred to is expressly in point also, as to the principal question. [ * 51 ] *If, however, the respondent had a legitimate excuse, he must have made application to the commanding officer of the company within eight days, in order to avail himself of it. The case finds that he was at home within the period limited.
    
      For the respondent, in reply. If the respondent was exempted by law, he was under no obligation to apply to the commander of the company to be excused .
    
      
      
        U. S. Laws, 2 Cong. 1 Sess. c. 33, § 2.
    
    
      
      
        Ibid, 2 Cong. 1 Sess. c. 29.
    
    
      
      
        Ibid, 13 Cong. 3 Sess. e. 2.
      
    
    
      
      
        Cowp. 519.—1 East. 446.—6 East. 238.—9 East. 44.
    
    
      
       14 Mass. Rep. 396, Commonwealth vs. Newcomb.
      
    
    
      
       11 Mass. Rep. 542.
    
   Parker, C. J.

If Douglas was, at the time the militia service was required of him, “a mariner actually employed in the sea service of any citizen or merchant of the United States,” he was exempt from militia duty. He was the master or skipper of a vessel of more than twenty tons burden, duly licensed to carry on the cod fishery; and he had entered into an agreement with his crew, conformably to the law of the United States. He was actually at sea, on the day when the muster was held, having been duly warned to attend on that day. He returned within less than eight days after.

It is said he should have applied, within the eight days, to the commander of the company, to be excused. But this was not necessary, if by law he was exempted from serving.

To ascertain what constitutes a mariner, within the meaning of the statute of the United States above alluded to, recurrence must be had to the laws of the United States; because, as to the regulation of the militia, and of the sea service, those laws are, by the constitution, paramount. To be “ actually employed in the sea-service of a citizen or merchant of the United States,” is to be a mariner, and, in that character, liabilities and privations are incurred, which are inconsistent with militia duty ; because mariners properly engaged are subjected to duties and penalties at all times and seasons; and the public interest is as dependent on the uninterrupted performance of their duty, as in the training and disciplining of the militia. Now, men employed in the fishing business, in vessels * which require a license, and an [ * 5£ ] agreement in the nature of a shipping paper, are as much mariners, as those who go on coasting or foreign voyages, and they are so treated by the laws of the United States.

The statute of the United States of the 19th of June, 1813, provides that the master or skipper of any vessel, of the burden of twenty tons and upwards, qualified to carry on the bank and other cod fisheries, shall have an agreement, &c.; and that the men who sign the agreement shall be subject to penalties for desertion, in the same manner as mariners in the merchants’ service. They may be apprehended and dealt with in the same manner. If, therefore, any of the fishermen, thus engaged, should remain to train in the militia, when the vessel was about to sail, they would be liable as deserters. These men are essentially mariners, being subject to all the laws of the United States relating to that class of citizens.

In 1811, the legislature of this commonwealth by law exempted mariners of this description from militia service . This statute was merely declaratory, in order to remove doubts and difficulties from the minds of those whose duty it was to see to the execution of the militia laws. For, if mariners, they were exempt by the paramount laws of the United States. But, in 1814, the law was repealed, and fishermen of this description were again attempted to be made liable . This also is a declaratory law; and nothing more can be inferred from either statute than that the legislature of one year construed the laws of the United States differently from the legislature of another year. Our decision is to be founded on the constitution and laws of the United States.

The case of the Commonwealth vs. Newcomb, cited in the argument, is not like the one before us; for in that case the man was not in fact employed in the sea service. The respondent in the present case being master of the vessel, the exemption applies to him, with at least as much force as to the crew.

Proceedings quashed 
      
      
        Slat. 1810, c. 111.
     
      
      
        Stat. 1814, c. 63.
     