
    Commonwealth versus James Newcomb, in Certiorari.
    The master of an enrolled vessel, employed in transporting stones, &c., from one part to another of Boston Bay, and occasionally making a short trip to sea for the purpose of fishing, was holden not to be exempted from militia duty, as a mariner in the sea service.
    This was a writ of certiorari, upon which were returned the proceedings had before a justice of the peace for this county, upon the complaint of a clerk of a company of militia, charging the respondent, Newcomb, with unnecessarily neglecting to appear at a muster of the company; for which offence the justice had adjudged him to pay a fine of two dollars.
    It was agreed by the parties before the justice, that the respondent was lawfully subject to the fine, unless, from the following facts, which were admitted or- proved, he was exempted from militia duty. At the time when the supposed neglect took place the respondent was master of a sloop, of the burden of thirty-three tons, duly enrolled and licensed; but which was solely employed in the transportation of stones, &c., from the towns of Weymouth and Braintree (both towns being within the collection district of Boston and Charlestown) to the * said towns of Boston and Charlestown; never going out of the said district, except on an occasional fishing trip, and returning in one, two, or three days, sometimes running several leagues without the lighthouse at the entrance of Boston harbor. In his said character, he had paid hospital money, or it had been paid for him by the owners of the vessel.
    
      Metcalf, for the respondent,
    argued that he was exempted fiom militia duty by the act of Congress passed May 8, 1792, recited in the statute of this commonwealth of 1809, c. 108, as “a mariner actually employed in the sea service of a citizen or merchant within the United States.” In the case of Pratt vs. Hall in error,  the decision that the person claiming the exemption was not a mariner, within the intent of the statute, went on the ground that the vessel in which he was employed was under» twenty tons’ burden. Had she been of a suitable burden to entitle her to be registered or enrolled, as the vessel in the present case was, it is fairly to be inferred that the decision would have been different.  Here, too, it is found that the vessel went to sea on fishing voyages.
    
      Chickc.ring for the commonwealth.
    
      
       4 Mass. Rep. 241.
    
    
      
       4 Mass. Rev- 67U
    
   Parker, C. J.

The provision, under which the respondent claims an exemption from duty under the militia laws of the United States and of this commonwealth, is thus expressed: “ all mariners actually employed in the sea service of any citizen or merchant within the United States.” He claims to be such a mariner, on the ground that he is master of a vessel or lighter of thirty-three tons, enrolled and licensed, and as having paid hospital money.

The exemption is to be determined by the occupation of the' person claiming to be a mariner, and not by the character of the vessel; for a small vessel may be enrolled, and hospital money may be paid for the very purpose of evading militia duty.

It appears that the respondent was not employed in the sea service, but only in the transportation of stones, &c., from one part of the same district to another. * There is no difference in principle between this case and that of Piatt vs. Hall. For the difference in the size of the vessel, and the increased distance of transportation, cannot give an exemption, where the nature of the business is the same, and where it is not necessary to go beyond the bay, or out of the reach of common law jurisdiction, to pursue that business.

The case of fishermen would seem to require the exemption much more than those who are employed, like the respondent, ir transporting stones from one river or inlet to another within the same bay; for the former are constantly upon the water, and cannot so well calculate their business on shore as the latter. But the legislature has refused this exemption to fishermen. For, by the statute of 1814, c. 63, they repealed the statute of 1810, c. Ill, which secured this privilege to fishermen, considering them not as mariners employed in the sea service. Those fishermen who are employed in the bank fishery are probably to be considered as mariners, while actually engaged therein. But there seems to be no reason why the master of a small vessel, plying from Braintree or Weymouth to Boston, should be exempt, which would not in a great measure apply as well to teamsters who should carry on the same business in wagons and carts.

Proceedings affirmed, 
      
      
         [Bayley vs Merritt, 2 Pick. 597. — Commonwealth vs. Douglass, 17 Mass. Rep. 49. — Ed.]
     