
    The Commonwealth against Holloway.
    
    A seaman, shipped in a British port, tv ho has deserted in a port of the TJnitedStates, cannot be committed to prison by an alderman or justice of the Íieace, for safe keeping, until he find security to proceed on the voyage, notwithstanding* he has contracted to submit to certain statutes which, in England, authorise such imprisonment. ,
    
      HABEAS CORPUS to the keeper of the prison of Phi~ ladelphia.
    
    
      Peter Morris had entered as seaman on board the Danish 'ship Resolution at Liverpool, to perform a voyage from that port to Philadelphia, and back to any port in Europe.
    
    On his arrival in Philadelphia he deserted.
    The captain of the Resolution made oath of these facts before George Bartram Esq., an alderman of the city, who issued a warrant, by virtue of which, Morris was arrested and committed to gaol, “ to be safely kept until he find security “ to go the voyage, or be delivered by due course of law.”
    By the shipping articles, executed by the master and mariners at Liverpool, on the 14th February, 1815, the parties agreed to be subject to the British statutes of 2 Geo. II. c. 36, and 31 Geo. III. c. 39, in relation to this subject.
    Evidence was given, that in some foreign ports, it was usual for the local authorities to imprison sailors who deserted from merchant vessels.
    The legality of this commitment was the question now before the court.
    
      Kittera for the prisoner.
    At common law, the commitment is, without doubt, illegal. The prisoner is charged with no offence for which he is to answer before a criminal court, and to confine a man upon a contract for service, before even an action is brought for a breach, is wholly without precedent. Even a runaway apprentice can be apprehended and imprisoned, only by virtue of an act of assembly, passed for that purpose.
    There is no statute in force here, authorising such a commitment. The act of congress of the 20th J-uly, 1790, is expressly confined to seamen shipped in the ports of the United States, and therefore does not extend to this case.
    Nor can the proceeding be justified, on the principles of the law of nations. The municipal regulations, or the established practice of some countries, may authorise an interference by the officers of government for the purpose of restoring foreign seamen who desert in their ports ; but no such general and uniform usage has been shown as will be binding upon the courts of this country. It is true, the prisoner has by his contract, agreed to be subject both to the British statutes and to the Danish law; but it is not for our tribunals to enforce the penalties imposed by the laws of those countries. In some cases of desertion the laws of Denmark inflict the punishment of death.
      
       Will it be pretended that a Danish seaman, who has committed such an offence as by the laws of his own country is punishable with death, would incur a similar penalty here ? Yet if our tribunals have the power of enforcing the laws of Denmark on this subject at all, they must have it to the fullest extent, since it is impossible to say, where the authority terminates. Cases analogous to the one now before the court have already been decided. Case of Hippolyte Dumas.
      Case of the deserters from the British ship of toar Africaine.
      
       In the last of these cases, the prisoners were claimed as deserters from a ship of war, by an accredited public agent; and if in such a case, it was not thought justifiable to extend the comity of nations so far as to restore them, surely there can be no reason for doing so in favour of the master of a merchant vessel, who complains merely of a breach of contract on the part of his seaman, and who has his remedy by an action on the contract.
    
      Chauncey for the captain.
    This is not merely a civil contract ; it is a maritime contract, and is to be construed and enforced on the principles of maritime law, and the law of nations. That comity, without which commercial nations cannot with advantage carry on an intercourse with each other, and which can exist only on' reciprocal and equal terms, should induce this court to support the commitment. This principle seems to have been recognised by the judge of the Admiralty Court of this district in the case of Willendson v. The Försöket,
      
       where he says, “ masters have always been assisted in recovering deserters.”
    
      But the seaman in this case, is not liable to imprisonment on general principles alone. By the shipping articles, he ex-pressiy agreed to subject himself, not only to the laws of Denmark on this subject, but to the British statutes, which authorise the apprehension and imprisonment of seamen who desei't, or refuse to proceed on the voyage. Abbot on Shipping, 161, 2. To discharge him, would therefore be a direct violation of his own contract.
    The commitment may also be sustained on a statute of our own. The 7th section of the act of congress of the 20th July, 1790, is sufficiently comprehensive to embrace this case. It extends to all seamen who have signed a contract to perform a voyage, and who shall, at any port or place, desert the vessel.
    If however the court should be of opinion, that the prisoner cannot be legally detained upon the present commitment, they ought at least to order him to be restored to the master, who is entitled to his services.
    
      
      
         Peters's Admiralty Decisions, Appendix, 87.
    
    
      
       2 American Law Journal, 86.
    
    
      
       3 American Law Journal, 132.
    
    
      
      
         1 Peterse's Admiralty Decision's 197.
    
   Tilghman C. J.

It appears by the return to this habeas corpus, that Peter Morris is imprisoned by virtue of a commitment by alderman Bar tram, “ the said Morris being “ charged, on oath, with having shipped himself on' board “ the ship Resolution at Liverpool, to perform a voyage from “ that port to Philadelphia, and back to any port in Europe, “ £pd with having deserted from the said ship ; to be safely “ kept until he find security to go the voyage, or be delivered by due course of law.” Th& Resolution is & Danish ship, and the captain is a Danish citizen.

If this commitment be good it must be supported by some principle of the common law, or by statute, or by the law of nations recognised as a branch of our common law.

1. The common law affords no countenance to such a commitment. Morris stands charged with no crime, and if he 'did, the commitment could only be until he found security to appear in court and answer it. But he is charged with breach of contract, the remedy for which, is by action ; and an imprisonment on an action by the captain of the ship would not be lawful, if the defendant could find bail. But no action has been brought. The prisoner then is confined, not for the purpose of safe keeping, in order that he may be forthcoming to answer any breach of our law, criminal or civil, but because the captain of the ship wishes him to be kept in goal in order to prevent his running away. We have acts of assembly authorising the imprisonment of servants and apprentices in certain cases, but it has never been supposed, that without such acts they could be imprisoned. If one man agrees to serve another, and breaks his contract, the party grieved may recover damages in an action, but he cannot imprison the wrong doer by way of punishment, or for safe keeping. The common law favours liberty,' and will not endure imprisonment for any but necessary purposes. Breaches of contract are compensated by damages, and if the defendant will give bail to appear and answer the plaintiff’s complaints, there is no necessity for imprisonment in the first instance. After trial and judgment the case is different. The defendant may then be imprisoned until he makes satisfaction. But in the present instance, no damages are demanded, no trial is contemplated. The mariner is imprisoned until he gives security to perform the voyage. It is a kind of proceeding unknown to the common law, and'its justification, if it can be justified, must be sought for in some other code.

2. We have no act of assembly on this subject; but there is an act of congress, (20th July, 1790, 1 L. U. S. 134,) “ for “ the government and regulation of seamen in the merchant’s “service,” on which it is probable this commitment was founded. This act is in its terms confined to vessels bound from a port in the United States to any foreign port, or from a port in'one state to a port in any other than an adjoining state. It directs, that the master shall make his agreement with the mariners in writing, before he proceeds on the voyage, under certain penalties ; inflicts penalties on the mariners in case of non-compliance with the contract; and in the whole scope of its provisions would be highly improper to be applied to foreign vessels, with mariners shipped in foreign ports. By the 7th section of this act, it is enacted, that if any seaman'or mariner who shall have signed a contract to perform-» voyage, shall desert or absent himself from his ship or vessel, without leave, any justice of the peace within the United States, may issue his warrant to apprehend such deserter and bring him before him; and if it appears, by due proof, “ that he has signed a contract zvithin .the intent and meaning of this act, and that the voyage is not finished, “ or tile contract otherwise dissolved, and that such seaman “ or mariner has deserted, &c.; the said justice may com- “ mit hini to the common gaol, till the ship or vessel shall be “ ready to proceed on the voyage, or till the master shall re- “ quire his discharge, and then to be delivered to the master, “ &c.” Now this proceeding being expressly confined to contracts ■within the intent and meaning of this act, refers to the first section which describes the contract, and therefore can only apply to cases where the seamen were shipped in a port of the Ui\ited States.

3. The point principally relied on in support of this commitment, is the usage and practice of nations, and several masters of vessels have deposed, that in the ports of England, France, Holland, Denmark and Sweden, mariners who desert are imprisoned by the authority of the government, at the request of their captains. . I know also, that justices of the peace have often assumed the same power in the United States, but I do not know that either in England or the United States, such proceedings have been sanctioned by judicial authority. I can perceive great convenience from the exercise of such a power under proper regulations, and very great inconvenience from the want of it. But I cannot say that from any evidence which has been adduced to us, there prevails such an uniform and general practice, as is entitled to the name of the law of nations. We once had a treaty with France providing for the arrest and delivery to the consuls of each nation, of mariners and seamen who had deserted. Consular Convention, 14th November, 1788, art. 9. and such a treaty seems almost necessary between commercial nations. But the making of a treaty, rather implies that there was no usage of nations under which such arrest could be demanded. The imprisonment of a man, and delivering him up to be carried out of the country, is an act of very high authority, and when it is permitted, should be guarded by forms which may prevent abuse. Where there is no treaty congress may provide for it by law, and probably they will, when the subject is brought before them. In the mean time, it is better that some inconvenience should be submitted to, than that the liberty of all seamen, who frequent the ports of the United States, should be subject to the controul of every inferior magistrate, proceeding upon. vague and uncertain evidence of the.custom of foreign nations. I am therefore of opinion, that the prisoner should be discharged.

Yeates J.

The provisions of the act of congress “ for the “ government and regulation of seamen in the merchant’s “ service,” passed the 20th July, 1790, are calculated to advanee the trade and navigation of the United States, and are expressly confined to our own seamen. The 7th section necessarily refers to the 1st, when it speaks of contracts within the “ intent and meaning of this act.” I know of no law, either of the general government, or of this commonwealth, which authorises an alderman or justice of the peace, to proceed summarily against a mariner who has deserted a foreign merchant ship, or absented himself without leave, by committing him to the common gaol, there to remain until ship shall be ready to proceed on her voyage. Such mariner may be proceeded against for a breach of his shipping agreement, in a civil suit only. I have no doubt of instances having occurred in Great Britain and Denmark, of a magistrate’s interposing in such a case; bat until it be ascertained that such a measure has been recognised by the judicial authority of the country, that circumstance would not alter my sentiments on this subject, on the ground of national comity. Inconveniences may be suffered by the owners and masters of foreign vessels, whose crews may desert upon their arrival in our ports, but these evils may be remedied by treaties, or a law of congress bottomed on extended principles of public policy.

I am of opinion, that Peter Morris be discharged from his imprisonment,

Brackenridge J. concurred.

Prisoner discharged.  