Ex parte D'Olivera

STORY, Circuit Justice.

The only difficulty, which the court has felt in this case, has been from the warrant of commitment being in the name of the commonwealth of Massachusetts. and not of the United States of America. That the justice meant to act under the authority of the United States, and in a case, which he supposed to be within the 7th section of the act of the 20th of July, 1790, c. 29 [ 1 Stat. 131 ], for the government .and regulation of seamen in the merchants’ service, is conceded on all sides, and can admit of no reasonable doubt. Desertion from a merchant ship is no offence, either by the common or the statute law of Massachusetts; and it would .be hard to presume, that the magistrate meant in this case to act without color of jurisdiction, and for purposes of wanton oppression. The warrant ought undoubtedly to have been in the name of the United States, and not of the commonwealth of Massachusetts. It was a strange mistake, but such as we have been informed has prevailed in practice in this place, almost ever since the existence of the act. Upon an attentive examination of the whole papers submitted to our consideration, notwithstanding the above error, we think that sufficient is apparent upon the face of them, to show that the magistrate did commit the party under color of the authority of the United States. We feel ourselves bound to presume, that he meant to commit in exercise of a lawful jurisdiction, (applied, however, to wrong objects), rather than to assume a jurisdiction, which under no circumstances could receive a shadow of authority from the laws of the state.

Having disposed of this objection, we are of opinion, that the act for the regulation of seamen exclusively applies .to seamen engaged in' the merchants’ service of the -United States. It may be a serious .inconvenience, that congress has ■ not extended the provisions to cases of foreign seamen in foreign vessels, in compliance with that comity, which it is understood many foreign nations exercise in favor of this country-Whatever may be the evil, we can only regret it; it is for another tribunal to apply the remedy. We order, therefore, ■ that the prisoners be discharged; and upon the payment of the costs of this application and the gaoler’s fees, we shall direct an officer to ■deliver them to the master on board of his vessel. We think ourselves bound to do thus much, from a desire not to encourage desertion among foreign seamen, there appearing-no reason to suspect the master of any improper conduct