Sect. 1. "If any seaman or mariner, not being a citizen of this commonwealth, or of any of the United States, who shall have signed a contract to perform a voyage on board any merchant ship or vessel (either a ship or vessel of the United States, or of any foreign nation whatsoever) shall at any port or place within this commonwealth desert, or shall absent himself from such ship or vessel, without the leave of the master, or other officer commanding in the absence of the master, it shall be lawful for any justice of the peace of any county or corporation within this commonwealth, upon the complaint of the master of such ship or vessel, or other officer commanding in the absence of the master, to issue his warrant to apprehend such seaman or mariner, and bring him before such justice; and if it shall appear by due proof, that such seaman or mariner has signed a contract as aforesaid, and that the voyage agreed for is not finished, altered, or the contract otherwise dissolved, and that the seaman or mariner has deserted the ship or vessel, or absented himself without leave, the said justice shall commit him to the jail of his county or corporation, there to remain until such ship or vessel shall be ready to proceed on her voyage, or till the master, or other officer commanding in the absence of the master, shall require his discharge, and then to be delivered to such master, or other officer commanding in the absence of the master, he paying all the cost of such commitment. 2 Rev. Code, p. 77.

Sect. 2. If any apprentice, who shall have been regularly bound by deed to the master or owner of any ship or vessel as aforesaid, for any term of years, for the purpose of being taught the art, trade, or mystery of a seaman or mariner, shall at any port or place within this commonwealth desert, or absent himself from the ship or vessel, on board of which he hath been placed by his said master, without the leave of the master of such ship or vessel, or other officer commanding in the absence of the master, it shall be lawful for any justice of the peace of any county or corporation within this commonwealth, upon the complaint of the master, or other officer commanding in the absence of the master, to cause such apprentice to be apprehended, and dealt with in the same manner herein before stated, if such justice shall be satisfied, by due proof, that such apprentice hath been regularly bound by deed to the master or owner of such ship or vessel, and that the said deed is then in full force. Ibid. 77, 78.

Sect. 3. Provided always, That if any seaman, mariner or apprentice, shall offer sufficient proof to satisfy the justice of the peace before whom he may be brought, that he hath been cruelly or improperly treated while on board any ship or vessel, by the master thereof, or that he hath good cause to apprehend danger to his person from the master, should he be compelled to remain on board such ship or vessel, it shall be lawful for the justice to discharge such seaman, mariner, or apprentice, from all further confinement on account of such desertion or absence. Ibid. 78.

(A) Warrant against a tavern-keeper for selling liquor to a sailor on credit, or entertaining him without leave.

to wit.

Whereas complaint hath this day been made to me, J P, a justice of the peace of the county (or corporation) aforesaid, by A I, that BO, the keeper of an ordinary or tavern, of the same place, did, on the day of past, and at divers other days and times between that day and the date hereof, sell to C S, a sailor in actual pay, belonging to the ship now lying at the port of pints of rum,

a quantity of liquor on credit, to wit, quarts of beer, &c. (or did harbour and entertain, and sell a quantity of liquor to the said CS, without the licence of C D, the captain of the vessel to which the said CS belongs) contrary to the act of the general assembly in that case made and provided. These are therefore to require you to summon the said BO to appear before me, or some other justice of the peace for the county (or corporation) of aforesaid, to answer the said charge. Given, &c.

On hearing the within complaint, it fully appearing to me that the within B O is guilty of the charge therein specified, judgment is granted against him for two dollars, besides costs.

For EXECUTION, see title WARRANTS.

(B) Warrant to apprehend a seaman, deserting from a

to wit.

vessel.

Whereas A C, commander of

or sloop

(describe the vessel by her c.) of

or stoop

kind and name, as the ship hath this day made complaint to me, JP, a justice of the peace for the county (or corporation) aforesaid, that B S, who had signed a contract to perform a voyage in the said (ship &c. as the case may be) hath deserted from the said ship &c. (or hath absented himself from the said ship &c.) without the leave of the said A C. These are therefore to require you to apprehend the said B S, and to bring him before me, or some other justice of the peace of the county (or corporation) aforesaid, to answer the said complaint, and further to be dealt with according to law. Given under my hand and seal, &c. To constable.

(C) Commitment.

To the keeper of the jail of

Whereas BS, a seaman, belonging to the ship

of

whereof A C is captain, hath this day been brought before me by my

warrant, on a charge of having deserted from the said ship, being under a written contract to perform a voyage in the same, from

to

; and it appearing to me, by due proof, that the said B S hath signed such contract as aforesaid, and that the voyage agreed for is not finished, altered, or contract otherwise dissolved, and that the said B S hath deserted the said ship (or absented himself without leave of the said A C, as the case may be.) These are therefore to require you to receive into your jail and custody the body of the said BS, and him therein safely keep, until he be thence discharged by due course of law. Given under my hand and seal, &c.

(D) Warrant of discharge.

&c. now ready to

To the keeper of the jail of Whereas AC, commander of the ship proceed on her voyage, hath required the discharge of B S, a seaman, belonging to the said ship, and lately committed to your custody for desertion. These are therefore to require you to discharge from your jail and custody the said B S, and deliver him to the said AC, if he be detained in your custody for no other cause than the desertion aforesaid. And for so doing, this shall be your sufficient warrant. Given under my hand and seal, &c.

The proceedings against an apprentice for desertion, or absenting himself without leave, are the same as in case of a seaman or mariner; only taking care to describe him as an apprentice, regularly bound by deed, &c.

(E) Warrant to discharge a seamen, mariner, or apprentice, for cruel treatment by the master.

to wit.

of

Whereas B S, a seaman (or apprentice, as the case may be) belonging to the ship hath been brought before me, on a charge of having deserted from the said ship (or of having absented himself without leave of the master of the said ship, as the case may be) and the said BS having now before me produced satisfactory proof, that he hath been cruelly treated while on board the said ship, by the master thereof (or that he hath good cause to apprehend danger to his person, from the master, should he be compelled to remain on board the said ship, as the case may be.) These are therefore, to discharge the said BS from all further confinement, on account of the said charge of desertion (or absence, as the case may be.) Witness my hand and seal, at this day of in the year

SEARCH WARRANTS.

THE importance of this subject, as well from the frequent applications made to magistrates to grant those warrants, as from the great caution necessary to be observed in the use of them, will justify my giving them a separate title. Under which I shall shew,

I. In what manner they shall be granted. II. How they should be executed. III. Proceedings after the return. IV. Form of a search warrant.

I. IN WHAT MANNER THEY SHALL BE GRANTED.

The power of granting search warrants seems now to be universally admitted, although so great an authority as lord Coke once denied their legality. See 4 Inst. ch. 31, p. 176.

Lord Hale, in his pleas of the crown (vol. ii. p. 150.) after controverting the opinion of lord Coke, as to the power of magistrates in granting those warrants, lays down the following rules respecting the use of them.

1. They are not to be granted without oath made before the justice of a felony committed, and that the party complaining hath probable cause to suspect they are in such a house or place, and doth shew his reasons of such suspicions. 2 Hale 150.

And therefore, a general warrant to search in all suspected places is not good, but only to search in such particular places, where the party assigns before the justice his suspicion and the probable cause thereof, for these warrants are judicial acts, and must be granted upon the examination of the fact. Ibid.

2. It is fit that such warrants to search do express, that search be made in the day time, and though they may not be unlawful without such restriction, yet they are very inconvenient without it, for many times, under pretence of searches made in the night, robberies and burglaries have been committed, and at best it creates great disturbance. Ibid.

3. They ought to be directed to constables and other public officers, whereof the law takes notice, and not to private persons, though it is fit the party complaining should be present and assistant, because he knows his goods. Ibid.

It ought to command that the goods found, together with the party in whose custody they are found, be brought before some justice of the

peace, to the end, that upon farther examination of the fact, the goods and party in whose custody they are found, may be disposed as to law shall appertain. 2 Hale 150.

II. HOW THEY SHOULD BE EXECUTED.

1. Whether the stolen goods are in the suspected house or not, the officer and his assistants in the day time may enter, the doors being open, to make search, and it is justifiable by this warrant. Ibid. 151.

2. If the door be shut, and upon demand it be refused to be opened by them within, if the stolen goods be in the house, the officer may break open the door. Ibid.

3. If the goods be not in the house, yet it seems the officer is ex cused that breaks open the door to search, because he searched by warrant, and could not know whether the goods were there till search made: but it seems that the party that made the suggestion is punishable in such case; for, as to him, the breaking the door is in the event lawful or unlawful, to wit, lawful if the goods are there, unlawful if not there. Ibid.

III.

PROCEEDINGS AFTER THE RETURN.

1. With respect to the goods brought before the magistrate, if it appears they are not stolen, they are to be restored to the possessor; if it appears they were stolen, they are to be delivered to the proprietor, but deposited in the hands of the sheriff or constable, to the end the party robbed may proceed by indicting and convicting the offender, to have restitution.* Ibid.

2. With respect to the party that had the custody of the goods: if they were not stolen, then he is to be discharged; if stolen, but not by him, but by another, that sold or delivered them to him, if it appear that he was ignorant that they were stolen, he may be discharged as an offender, and bound over to give evidence as a witness against him that sold them; if it appears that he was knowing they were stolen, it is fit to bind him over to answer the felony, for there is a probable cause of suspicion, at least that he was accessory after. Ibid. 152.

The foregoing observations of lord Hale have been fully recognized by very important determinations, made since he wrote. In the case of John Entick, who, with his papers, were seized, by a warrant issued by the earl of Halifax, as secretary of state; "for being the author, or one concerned in writing the Monitor." On trespass, the jurors found a special verdict; and lord Camden, in delivering the resolution of the court, observed, "that a warrant to seize and carry away papers in the case of a seditious libel was illegal and void. He said that warrants to search for stolen goods had crept into the law by impercepti ble practice, that it is the only case of the kind to be met with, and that the law proceeds in it with great caution. For, 1st, There must be a full charge, upon oath, of a theft committed."

2d. "The owner must swear that the goods are lodged in such a place."

But the writ of restitution is now fallen into disuse, and, instead thereof, the court orders them to be restored to the owner. See 2 East's Cr. L. 788.