¶1delivered the opinion of the Court. The cause of arrest is admitted to arise from the charge of being a deserted seaman from the ship Hornet; and the arrest and commitment are made by warrant from a United States commissioner. Desertion is an offence against the laws of the United States, and is so made by the seventh section of the Act of 1790; and the same act confers jurisdiction on justices of the peace alone to issue warrants of arrest, try the issues, and commit the deserter. No other act seems to invest any other officer with a similar jurisdiction. The Act of 1842 gives commissioners the same power as is given to justices of the peace by the thirty-third section of the Act of 1789; but that section only gives the power to arrest and commit for trial, but gives no power to try. It results, therefore, that the commissioner has no such jurisdiction *145as is claimed, and that the prisoner is improperly held in custody under a warrant issued by him.
¶2Its importance, however, to the commercial interests existing in every port, renders it desirable and necessary that the Act of Congress should be enforced; and the relief which this Court will always grant against an improper- exercise of jurisdiction, must not be used as a means of escape from the performance of a duty required by law, or from the penalty which the law inflicts.
¶3It is therefore ordered, that the prisoner remain in custody until six o’clock this evening; when he shall be discharged, unless again arrested by warrant from the proper authority.