the United States courts and the state courts; as to cases of insolvency, which is of importance in this enquiry-It consequently results, that the security of the creditor in the court of the United States, is greater than in the courts of this state; as he has a longer time to search out cases of fraud against his debtor; and is thereby the better enabled to provide for his own security, before the debtor can be liberated or discharged under insolvent debtor acts.

Upon the whole, without touching any other contested points of the argument, (deeming it unnecessary in the opinion I am about to give) the case appears to me, to resolve itself into this: -that, by the constitution of the United States, the individual states have given up their rights of legislating, as to commerce and bankruptcy: that this right is now solely in possession of the United States government, which through its laws and judiciary, is bound to watch over and superintend the same: that no bankrupt law existing at this time, does not affect the main question-because the right in government still remains to enact one; or to repose its confidence in the judiciary, as to their decision respecting the same, in relation to the state laws: that the courts of the United States by admitting defendants to the benefit of the state insolvent acts, under the superintending and contracting power of the laws of the United States, now exist ing, can and do promote the due ends of justice, as relating to bankrupts. But, it must be remembered, all this is done under the authority of the United States, and not under that of state authorities; although in doing so, the insolvent acts of the states are referred to, as rules of decision in cases when they apply; as declared by the 34th section of the judiciary act. Under these impressions I do not think, that by insolvent discharges from the courts of this state, the insolvent debtor's acts of this state, should be allowed to suspend or weaken the lien of process in this court, in the manner contended for in this case. It would be an interference between creditors and debtors; and certainly would tend to impair the obligation of contracts.

June 27.

PHILADELPHIA NISI PRIUS, OCT. 1816.

Commonwealth ex rel. Frantz Anthon Van Ritter, vs. Captain John Schultz. Habeas Corpus.

[An agreement between the master of a vessel and a passenger, that the lat ter shall remain on board until he has paid his freight, is lawful. He cannot plead as a set off, that the master did not furnish the provisions which he stipulated. These are mutual covenants, on which each party may have an action.]

TILGHMAN, Ch. J. It appears by the return to the habeas corpus and the evidence which has been given, that the relator Frantz Anthon Van Ritter, was a passenger together with many others, Germans and Swiss, in the brig Ceres, from Amsterdam to Philadelphia, and the defendant captain Schultz, detains him on board the said brig, now lying in the Delaware, off Philadel phia, by virtue of a contract made between the captain and passengers at Amsterdam, by which the passengers agreed not to leave the brig without permission of the captain, until payment of their passage money. It is contended by Van Ritter in the first place, that this contract so far as concerns the engagement not to leave the brig is illegal and void-but that even if it were valid, the captain having not performed his part of the agreement has no right to detain him.

The contract is said to be illegal, because it is oppressive and unconscientious, and because it is against the public interest and general policy of the country.

It is not pretended that the passengers in this vessel, are to pay more than the usual freight; or that any deception was put upon them, at the time of entering into the contract. They came on board in the usual way and made such an agreement for their passage as is commonly made. Having no money, nor being able to find security at Amsterdam, they stipulated not to leave the brig till they had paid for their passage. They knew very well that they could make no money during the passage, nor could they expect to borrow it on their arrival in a strange

country. But it was also known that by indenting themselves to serve for a term of years, the money might be raised; and in order to secure the captain who carried them over the sea and supplied them with provisions, they promised not to leave the brig until they had paid for their passage, which in substance amounted to an engagement, to raise the money by indenting themselves before they left the brig. Their object was to advance their fortunes in a new country, an object which had been frequently attained by their countrymen, who had gone to America before them-and it is not easy to conceive any better means of accomplishing their object than those which were taken. Supposing then the contract to have been fairly complied with on the part of the captain, I can perceive nothing in it unreasonable and unconscientious; on the contrary it was advantageous to the emigrants. Having no money, they obtained credit by giving the only security in their power, a security which if not abused on the part of the captain could be productive of no hardship whatever.

But it is said to be against the general policy of our laws and government. If it be so, it must be either because of the indenture of servitude, or because of the right of the captain to detain the passengers until they enter into such indenture. Upon consideration of our laws and customs, it is extremely clear, that an indenture of this kind is not only not against our policy, but that it is conformable to the policy and custom which has prevailed from the earliest times. In the case of the Com. v. Keppele, 2 Dall. Rep. 197. this subject was materially considered, as appears from the opinion of Judge Bradford, who as is well known, was remarkable for deep and accurate research. He states this custom of persons coming from Europe, binding themselves and their children as servants in America to pay for their passage, as having originated with the first adventurers to Virginia. It arose from the circumstances of the country, and being found eventually beneficial to the merchant and the adventurer, it has never ceased, but was introduced into Maryland and Pennsylvania, which were colonized after Virginia. We find it referred to in our statute book so early as the year 1700, in fact there was a convenience in it so obvious that it could not be relinquished. It has been the favourite policy of Pennsylvania to encourage particularly the importation of Germans. The

name of German Redemptioner, which implies servitude, is familiar to her laws. Servitude of this kind is no disgrace; and the soundness of the policy, which encouraged it, is proved by this notorious fact-that many of the Redemptioners having honestly served out their time, have arisen to eminence both of character and fortune, and the same remark is applicable to many who have been imported from Great Britain and Ireland. Our laws have paid particular attention to Germans, because we seem to have expected a greater emigration from Germany, than from any other country-because we considered them as a steady, sober, industrious people, remarkably fitted for agriculture-and because, being ignorant of our language, they stand more in need of legislative protection, than the emigrants from our mother country. Accordingly we find that on the 8th April 1785, an act was passed "for establishing the office of a register of all German passengers who shall arrive at the port of Philadelphia, and of all indentures by which any of them shall be bound servants for their freight, and of the assignment of such servants in the city of Philadelphia." This act contained many provisions beneficial to the Germans, and by another act passed 12th March, 1810, "all masters or mistresses of German Redemptioners who are minors, and who shall arrive at the port of Philadelphia after the passing of said act, shall give to the said Redemptioners 6 weeks schooling for every year of his or her time of servitude, and it shall be the duty of the register of German passengers, to insert the same fully in their indentures." It cannot be denied therefore, that this kind of servitude has been recognized and provided for by our laws, so that it only remains to consider, whether the right to detain the passenger on board, till he pays the money, or in other words till he indents himself, is contrary to the genius of our laws or constitution.

If we wish for the importation of Germans, who have not money to pay their passage, we must permit the merchant who imports them to have security for his freight. Now in what other way can these people give security, than agreeing to remain on ship-board till they indent themselves as servants? I confess that none has occurred to me, nor has any been suggested by the learned counsel who have argued for the relator. They have said, indeed, that the passenger may agree in Eu

rope to indent himself on his arrival in America, and the ship owner may sue him if he does not comply with his contract. But what security is there in that? The owner might as well have rested on a simple promise to pay the freight-And what advantage would the honest passenger derive from being sued on his contract? A fraudulent man indeed might think it for his interest to go to gaol, and come out by the insolvent act; but one who meant to act fairly, would rather remain on board, till he had raised the money, than to subject himself to an action for the freight merely for the sake of setting his feet on shore a few days sooner. But it is objected that private imprisonment is odious and intolerable. I grant it, and should not be for ordering it—but how can this be called private imprisonment? Have not our laws provided that public officers shall visit the ship, and examine the condition of the passengers? Is there not free access for the friends of the passengers, for strangers who wish to contract for their service, and for the members of that respectable society whose object and duty it is to afford relief to their countrymen in distress-If this access were denied, it might then indeed be called a private imprisonment, for which this court would give immediate redress. Supposing then this right of detention to be exercised with mildness and humanity, according to the true meaning of the contract, I perceive nothing in it either inconsistent, oppressive, or impolitic; and in this sentiment I am supported by an authority no less than the legislature of the commonwealth-For by an act passed 22d April, 1794, (sect. 13) "it shall be lawful for the master, captain or owner, or consignee of any ship, or vessel, importing passengers into this commonwealth as aforesaid, to keep and detain any such passengers, who are unable to pay their freight, on board the same ship or vessel wherein they were imported respectively, for the space of thirty days after their arrival opposite the city of Philadelphia, in order that they may have time to find out relations or friends, who may discharge their freight, or to agree with some person, or persons, who shall be willing to pay the same in consideration of their servitude for a term of years, agreeably to custom."

The above is part of a law for establishing a health office, &c. The laws concerning the health office are various and compli cated several have been made and several repealed, in whole