Bayley v. Merritt

19 Mass. 597

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1824
• Status: Published

Opinion

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.