
    Job Bayley versus James L. Merritt.
    Fishermen engaged in the mackerel fishery on board a vessel of the burden of more than twenty tons, duly licensed for the cod fishery, although they may not have signed any shipping paper, are not liable to do duty in the militia, notwithstanding St 1824, c. 64.
    This was a petition for a certiorari to a justice of the peace, who had sentenced Bayley, the petitioner, to pay a fine for neglecting to appear at a muster of a company of militia, in Scituate, on the 20th of October, 1823.
    It was proved or admitted, at the trial before the justice, that Bayley, at the time of the muster, and for four or five months previous, was the master of a schooner belonging to a citizen of the United States, of the burden of fifty-four tons, duly enrolled and licensed to carry on the cod fishery, and that for four and a half months previous he had in that vessel, with a crew of six men, been engaged in catching mackerel; that the usual length of a voyage is from three to four weeks ; that about four weeks previous to the muster Bayley sailed on a voyage for mackerel, intending to return with the fish to Boston, where they were to be landed in order to be packed, and that on his return he put into the harbor of Cohasset, where the vessel belonged, on the 17th of October, went to his home in Scituate on the following night, returned to his vessel on the 19th and sailed for Boston, and on the 20th was engaged in Boston in discharging the mackerel caught on the voyage ; and that no shipping paper had been signed by the master and crew.
    
      
      Beal,
    
    in support of the petition, referred to U. S. Laws 2 cong. 1 sess. c. 33, § 2.
    W. Baylies, contrà,
    
    cited Commonwealth v. Douglas, 1 Mass. R. 49 ; Commonwealth v. Newcomb, 14 Mass. R 394 ; Brush v. Bogardus, 8 Johns. R. 121.
    The opinion of the Court was delivered at May term 1825, at Plymouth, by
   Parker C. J.

We are of opinion that the petitioner, at the time when he was warned to do the militia duty in question, was a “ mariner actually employed in the sea service of a citizen of the United States,” and therefore exempt from militia duty. There is no substantial difference between this case and that of Commonwealth v. Douglas. The respondent in that case and the petitioner here, were both fishermen in licensed vessels, and they usually, after getting a fare, came into harbor and prepared for another voyage. In one case codfish, and in the other, mackerel was the object. This surely constitutes no difference. The real question is, wheth er the employment at sea is so constant, as to be incompatible with the performance of militia duty on shore ; and this clearly is the case with respect to the mackerel fishery in the season of it. That there was no shipping paper, we think, can make no difference in the character of the employment; that was only one circumstance, among others enumerated in the case of Commonwealth v. Douglas, to prove that the respondent was a mariner. But a vessel may go a foreign voyage without a shipping paper, and so she may a fishing voyage risking the inconvenience of being without one.

Certiorari awarded.  