Upon what ground the court below dismissed the writ and remanded the petitioners does not appear, but the record raises two questions of some importance: First, as to the constitutionality of Rev. St. §§ 4598, 4599, in so far as they confer jurisdiction upon justices of the peace to apprehend deserting seamen, and return them to their vessel; second, as to the conflict of the same sections, and also section 4596, with the thirteenth amendment to the constitution, abolishing slavery and involuntary servitude.
Section 4598, which was taken from section 7 of the act of July 20, 1790, reads as follows:
'Sec. 4598. If any seaman who shall have signed a contract to perform a voyage shall, at any port or place desert, or shall absent himself from such vessel, without leave of the master, or officer commanding in the absence of the master, it shall be lawful for any justice of the peace within the United States, upon the complaint of the master, to issue his warrant to apprehend such deserter, and bring him before such justice; and if it then appears that he has signed a contract within the intent and meaning of this title, and that the voyage agreed for is not finished, or altered, or the contract otherwise dissolved, and that such seaman has deserted the vessel, or absented himself without leave, the justice shall commit him to the house of correction or common jail of the city, town or place, to remain there until the vessel shall be ready to proceed on her voyage, or till the master shall require his discharge, and then to be delivered to the master, he paying all the cost of such commitment, and deducting the same out of the wages due to such seaman.' Section 4599, which was taken for section 53 of the shipping commissioners' act of June 7, 1872, authorizes the apprehension of deserting seamen, with or without the assistance of the local public officers or constables, and without a warrant, and their conveyance before any court of justice or magistrate of the state, to be dealt with according to law.
Section 4596, which is also taken from the same act, provides punishment by imprisonment for desertion, refusal to join the vessel, or absence without leave.
1. The first proposition, that congress has no authority under the constitution to vest judicial power in the courts or judicial officers of the several states, originated in an observation of Mr. Justice Story, in Martin v. Hunter's Lessees, 1 Wheat. 304, 330 to the effect that 'congress cannot vest any portion of the judicial power of the United States, except in courts ordained and established by itself.' This was repeated in Houston v. Moore, 5 Wheat. 1, 27; and the same general doctrine has received the approval of the courts of several of the states. U.S. v. Lathrop, 17 Johns. 4; Ely v. Peck, 7 Conn. 239; U.S. v. Campbell (Ohio Com. Pl.) 6 Hall, Law J. 113. These were all actions for penalties, however, wherein the courts held to the familiar doctrine that the courts of one sovereignty will not enforce the penal laws of another. Huntington v. Attrill, 146 U.S. 657, 672, 13 Sup. Ct. 224. In Com. v. Feely, 1 Va. Cas. 325, it was held by the general court of Virginia, in 1813, that the state courts could not take jurisdiction of an indictment for a crime committed against an act of congress.
In Ex parte Knowles, 5 Cal. 300, it was also held that congress had no power to confer jurisdiction upon the courts of a state to naturalize aliens, although, if such power be recognized by the legislature of a state, it may be exercised by the courts of such state of competent jurisdiction.
In State v. Rutter, 12 Niles, Reg. 115, 231, it was held, in 1817, by Judges Bland and Hanson, of Maryland, that congress had no power to authorize justices of the peace to issue warrants for the apprehension of offenders against the laws of the United States. A directly contrary view, however, was taken by Judge Cheves, of South Caro lina, in Ex parte Rhodes, 12 Niles, Reg. 264.