Tucker v. Alexandroff/Dissent Gray

Mr. Justice Gray, with whom concurred Mr. Chief Justice Fuller and Justices Harlan and White, dissenting:

The Chief Justice, Justices Harlan and White and myself are unable to concur in the opinion and judgment of the court. The case presents such an important question of international law as to make it fit that the grounds of our opinion should be stated. It is necessary to a proper determination of the case that its precise facts should be borne in mind, and they will therefore be here recapitulated.

This is a writ of certiorari, granted by this court on the application of William R. Tucker, the Russian vice-consul at Philadelphia, to review a judgment of the United States circuit court of appeals for the third circuit on February 25, 1901 (48 C. C. A. 97, 107 Fed. 437), affirming a judgment of the district court for the eastern district of Pennsylvania on July 12, 1900 (103 Fed. 198), discharging on writ of habeas corpus Leo Alexandroff, held in custody under a warrant of commitment issued by a United States commissioner to Robert C. Motherwell, Jr., keeper of the Philadelphia County Prison, subject to the order of the Russian vice-consul at Philadelphia, or of the master of the Russian cruiser Variag, under § 5280 of the Revised Statutes, which is as follows: 'On application of a consul or vice-consul of any foreign government having a treaty with the United States stipulating for the restoration of seamen deserting, made in writing, stating that the person therein named has deserted from a vessel of any such government, while in any port of the United States, and on proof by the exhibition of the register of the vessel, ship's roll, or other official document, that the person named belonged, at the time of desertion, to the crew of such vessel, it shall be the duty of any court, judge, commissioner of any circuit court, justice, or other magistrate, having competent power, to issue warrants to cause such person to be arrested for examination. If, on examination, the facts stated are found to be true, the person arrested, not being a citizen of the United States, shall be delivered up to the consul or vice-consul, to be sent back to the dominions of any such government, or, on the request and at the expense of the consul or vice-consul, shall be detained until the consul or vice-consul finds an opportunity to send him back to the dominions of any such government. No person so arrested shall be detained more than two months after his arrest; but at the end of that time shall be set at liberty, and shall not be again molested for the same cause. If any such deserter shall be found to have committed any crime or offense, his surrender may be delayed until the tribunal before which the case shall be depending, or may be cognizable, shall have pronounced its sentence, and such sentence shall have been carried into effect.'

The treaty of the United States with the Emporer of Russia of December 18, 1832, provides, in article 9, as follows:

'The said consuls, vice-consuls, and commercial agents are authorized to require the assistance of the local authorities for the search, arrest, detention, and imprisonment of the deserters from the ships of war and merchant vessels of their country. For this purpose they shall apply to the competent tribunals, judges, and officers, and shall in writing demand said deserters, proving by the exhibition of the registers of the vessels, the rolls of the crews, or by other official documents, that such individuals formed part of the crews; and this reclamation being thus substantiated, the surrender shall not be refused. Such deserters, when arrested, shall be placed at the disposal of the said consuls, vice-consuls, or commercial agents, and may be confined in the public prisons, at the request and cost of those who shall claim them, in order to be detained until the time when they shall be restored to the vessels to which they belonged, or sent back to their own country by a vessel of the same nation or any other vessel whatsoever. But if not sent back within four months from the day of their arrest, they shall be set at liberty, and shall not be again arrested for the same cause. However, if the deserter should be found to have committed any crime or offense, his surrender may be delayed until the tribunal before which his case shall be depending shall have pronounced its sentence, and such sentence shall have been carried into effect.' 8 Stat. at L. 448.

The warrant of commitment in this case was issued by the commissioner on June 1, 1900, on the application of the vice-consul of Russia at Philadelphia, upon the affidavit of Captain Vladimir Behr, stating that he was master of the Russian cruiser Variag, then in the port of Philadelphia, and that Alexandroff was a duly engaged seaman of that vessel, and on or before April 25, 1900, had deserted from her without any intention of returning.

The Variag was built under a contract in writing, dated April 23, 1898, between the William Cramp & Sons Ship & Engine Building Company of Philadelphia, Pennsylvania, and the Russian Ministry of Marine, by which the Cramp Company agreed to supply for the imperial Russian navy a protected cruiser, built, equipped, armed, and fitted (except the ordnance and torpedo outfit), subject to the approval of a board of inspectors appointed by the Russian Ministry of Marine. That contract contained the following provisions:

'Art. 8. Trials to determine the speed of the vessel shall be made by the contractors, in the presence of the board of inspection, and at the cost of the contractors, who agree to insure the vessel against sea risks and all other risks of every description during the trials, and until such time as the vessed is handed over to the exclusive possession and custody of the Russian Ministry of Marine.' And if the mean speed should be less than 21 knots per hour, or the actual draught of water in any part of the ship should exceed the contract draught by 1 foot, it should be optional with the Russian Ministry of Marine to reject the ship.

'Art. 10. The contractors agree that the vessel to be built as aforesaid, whether finished or unfinished, and all steel, iron, timber, and other materials as may be required by the contractors, and be intended for the construction of the said ship, and which may be brought upon the premises of the contractors, shall immediately thereupon become and be the exclusive property of the Russian Ministry of Marine. The flag of the imperial Russian government shall be hoisted on the said ship whenever desired by the board of inspection, as evidence that the same is said government's exclusive property, and the Russian Ministry of Marine may at any time appoint an officer or officers to take actual possession of the said ship or material, whether finished or unfinished, subject to the lien of the contractors for any portion of the value that may be unpaid.'

'Art. 12. The contractors shall insure and keep insured, against all risks usually insured against, the said vessel, its engines and all fittings and materials, at their own cost, but in the name of, and for the benefit of, the Russian Ministry of Marine, in fire insurance companies previously approved by the board of inspection, and in such an amount or amounts as shall be, from time to time, sufficient to cover and recoup to the imperial Russian government the sum or sums which said government, for the time being, may have paid, or become bound to pay, to the contractors in respect of such vessel.' 'Notwithstanding anything herein contained, the ship, together with its engines, machinery, and equipment, shall, as between the contractors and the Russian Ministry of Marine, stand, and at all times be, at the risk of the contractors, until the said ship has been accepted by the imperial Russian government, or it has taken actual possession thereof.'

'Art. 13. The contractors engage, at their own cost and risk, to launch and deliver the vessel safe and uninjured at Philadelphia, Pennsylvania, and equipped for sea, into the charge of the persons appointed by the imperial Russian government to receive it in not more than twenty months after the arrival of the board of inspectors at Philadelphia.'

By article 18 the Russian Ministry of Marine agreed to pay the price in ten equal instalments, withholding 10 per cent of each instalment until final payment. The instalments were payable at successive periods, the last two being as follows: '9. Ten per cent when steam has been raised in the boilers and the engines turned over under their own steam. 10. Ten per cent when the ship has had a successful trial trip and has been turned over to the imperial Russian government, and simultaneously therewith there shall be paid to the contractors the 10 per cent of each of the previous instalments which shall have been withheld as aforesaid.'

Alexandroff entered the Russian navy in 1896, at the age of seventeen, for the term of six years, and was an assistant physician. He was one of fifty-three members of the Russian navy, sent out in a passenger steamship (not a Russian) by the Russian government, under command of an officer, for the purpose of becoming part of the crew of the cruiser Variag; and arrived in this country October 14, 1899. The ship was then on the stocks, and was launched in October or November, 1899, and made one trial trip. But in June, 1900, she was still in the custody of the contractors, had not been completed by them, or accepted by the Russian government, and a good many of the contractors' men were still working on her; and only about 80 per cent of her price had been paid. Alexandroff was never on the ship, never signed any paper as a member of her crew, and was never ordered on board of her, either as a seaman or as an assistant physician; but from October, 1899, to April, 1900, lived on shore, with the rest of the men who came with him, had his photograph taken with them, received equipment, support, and wages from the Russian government, and performed the duties required of him as an assistant physician. He left his associates, without leave, at Philadelphia on April 20, 1900, went to New York, and there took up his residence, and on May 24, 1900, made in court a primary declaration of his intention to become a citizen of the United States.

There was introduced in evidence, without objection, a copy of a letter (the original of which was said to be in the possession of the Russian ambassador at Washington), dated 'Treasury Department, Office of the Secretary, Washington, D. C., October 4, 1899,' signed by the acting Secretary of the Treasury, and in these terms:

'Sir:-Acknowledging the receipt of your letter of 24th ultimo, No. 557, I have the honor to inform you that, in compliance with request contained therein, instructions have been issued to the commissioner of immigration at the port of New York, to admit without examination the detail of one officer and fifty-three regular sailors whom you state have been detailed to this country for the purpose of partially manning the cruiser now under construction for the Russian government at Cramp's shipyard in Philadelphia, Pennsylvania. The collector of customs has also been advised that the usual head tax of $1.00 is not to be collected in this case.'

This letter was assumed by the courts below to have been addressed to the Russian ambassador and in answer to a letter from him. But it appears by copies of documents in the Treasury Department, submitted by counsel for the petitioner by leave of this court, that it was in answer to a letter dated September 24, 1899, No. 557, from the naval attach e of the imperial Russian embassy at Washington to the Secretary of the Treasury, requesting that the necessary orders to whom it concerned might be given for 'allowing admittance to the United States through the port of New York without examination the detail of one officer and fifty-three regular sailors, imperial Russian navy, detailed to this country for the purpose of partially manning the curiser now under construction for the Russian government at Cramp's shipyard, in Philadelphia, Pennsylvania.'

That correspondence also included similar letters between the naval attach e of the Russian embassy and the Secretary of the Treasury of June 22 and 23, 1899, concerning 'a detail of one offcer and twenty-nine regular sailors for the purpose of partially manning the cruiser' aforesaid.

Together with that correspondence, the petitioner submitted to this court copies of papers from the Department of State, showing the following: On December 6, 1900, the Russian ambassador wrote to the Secretary of State, saying that the Russian minister of the navy had just informed him that two hundred and twenty-four sailors of the Russian imperial navy, accompanied by three officers, one doctor and a commissary, had embarked at London on the Rhineland for Philadelphia, and that 'two hundred and eleven of them have been sent to complete the crew of the Russian cruiser Variag, and the other thirteen are under orders for the Retvisan, which is being built by the Cramps of Philadelphia,' and requesting the Secretary of State 'to notify the Treasury Department of the approaching arrival of these sailors, and to request that they may be allowed to land, and that restitution may be made to the superior officer of the tax imposed on emigrants and paid at the time of their embarkation.' On December 15, 1900, the Secretary of State answered that the request had been referred to the Secretary of the Treasury, who had replied that the commissioner of immigration at Philadelphia had been directed to facilitate the landing of the seamen and officers referred to, and the collector of customs to refrain from collecting the per capita tax from the steamship company; and that said company should be called upon to refund the amount paid to their Liverpool representative in advance for the head tax. On December 25 and 28, 1900, a like correspondence took place between the Russian ambassador and the Secretary of State concerning 'two hundred and thirteen seamen of the imperial fleet, accompanied by two officers, a monk and a cook,' embarked at Liverpool for Philadelphia on the Belgenland, and 'sent hither to complete the crew of the imperial cruiser Variag.'

In the circuit court of appeals, on October 1, 1900, the attorney of the United States for the eastern district of Pennsylvania, 'at the instance of the Executive Department of the government of the United States,' filed by leave of court a suggestion, stating the facts as appearing by the record, and praying that Alexandroff be remanded to the custody of the keeper of the county prison at Philadelphia, to await the order of Captain Vladimir Behr, master of the cruiser Variag.

Such being the facts of the case, we proceed to state the principles by which it appears to us to be governed.

The jurisdiction of every nation within its own territory is absolute and exclusive; by its own consent only can any exception to that jurisdiction exist in favor of a foreign nation; and any authority in its own courts to give effect to such an exception by affirmative action must rest upon express treaty or statute.

In the case of The Exchange v. M'Faddon, decided by this court in 1812, nearly ninety years ago, the point adjudged was that 'The Exchange, being a public armed ship, in the service of a foreign sovereign, with whom the government of the United States is at peace, and having entered an American port open for her reception, on the terms on which ships of war are generally permitted to enter the ports of a friendly power, must be considered as having come into the American territory under an implied promise that while necessarily within it, and demeaning herself in a friendly manner, she should be exempt from the jurisdiction of the country.' 7 Cranch, 116, 147, 3 L. ed. 287, 297. Chief Justice Marshall, in expounding at large the principles upon which the exemption was founded, began by saying: 'The jurisdiction of courts is a branch of that which is possessed by the nation as an independent sovereign power. The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source. This consent may be either express or implied. In the latter case, it is less determinate, exposed more to the uncertainties of construction; but, if understood, not less obligatory.' 7 Cranch, 136, 3 L. ed. 293. He then dealt with the principal exceptions: 1st. The exemption from arrest or detention of a foreign sovereign entering the territory of a nation with the license of its sovereign. 2d. The immunity which all civilized nations allow to foreign ministers. 3d. The cession of a portion of the territorial jurisdiction by allowing the troops of a foreign prince to pass through the territory.

The opinion of Chief Justice Marshall in the case of The Exchange has ever since been recognized as laying down the principles which govern the subject. His very language has been embodied by Wheaton in his Elements of International Law, pt. 2, chap. 2; 8th ed. §§ 96-101. Phillimore, in his Commentaries on International Law, 3d ed. 476, 479, says: 'Long usage and universal custom entitle every such ship to be considered as a part of the state to which she belongs, and to be exempt from any other jurisdiction.' 'The privilege is extended, by the reason of the thing, to boats, tenders, and all appurtenances of a ship of war, but it does not cover offenses against the territorial law committed upon shore.' And in 1880, Lord Justice Brett (since Lord Esher, M. R.), delivering the judgment of the English court of appeal, dealing with 'the reason of the exemption of ships of war and some other ships,' said: 'The first case to be carefully considered is, and always will be, The Exchange.' The Parlement Belge, L. R. 5 Prob. Div. 197, 208.

In the Santissima Trinidad, Mr. Justice Story, speaking for this court, said: 'In the case of The Exchange v. M'Faddon, 7 Cranch, 116, 3 L. ed. 287, the grounds of the exemption of public ships were fully discussed and expounded. It was there shown that it was not founded upon any notion that a foreign sovereign had an absolute right, in virtue of his sovereignty, to an exemption of his property from the local jurisdiction of another sovereign, when it came within his territory; for that would be to give him sovereign power beyond the limits of his own empire. But it stands upon principles of public comity and convenience, and arises from the presumed consent or license of nations, that foreign public ships coming into their ports, and demeaning themselves according to law, and in a friendly manner, shall be exempt from the local jurisdiction.' 'It may therefore be justly laid down as a general proposition, that all persons and property within the territorial jurisdiction of a sovereign are amenable to the jurisdiction of himself or his courts; and that the exceptions to this rule are such only as by common usage and public policy have been allowed, in order to preserve the peace and harmony of nations, and to regulate their intercourse in a manner best suited to their dignity and rights.' 7 Wheat. 283, 352-354, 5 L. ed. 454, 471, 472.

We find no precedent, either in our own decisions or in the books of international law, for extending the exemption to an uncompleted ship, or to sailors who have never been on board of her, although intended to become part of her crew when she shall have been completed.

On the contrary, Mr. Hall says that where a ship is bought, or is built and fitted out to order, she is only private property until she is commissioned; and, although invested with minor privileges, such as immunity from liens of mechanics, she is far, if she be a ship of war, from enjoying the full advantages of a public character. And again: 'The immunities of a vessel of war belong to her as a complete instrument, made up of vessel and crew, and intended to be used by the state for specific purposes; the elements of which she is composed are not capable of separate use for those purposes; they consequently are not exempted from the local jurisdiction. If a ship of war is abandoned by her crew, she is merely property; if members of her crew go outside the ship or her tenders or boats, they are liable in every respect to the territorial jurisdiction.' Hall, International Law, 4th ed. 169, 205. So Mr. T. J. Lawrence says: 'The immunities of which we have been speaking do not follow the members of the ship's company when they land. In their ship and in its boats, which are appurtenant to it and share its privileges, they are exempt from the local jurisdiction; but the moment they set foot on shore they come under the authority of the state, and may be arrested and tried like other foreigners if they commit crimes or create disturbances.' Principles of International Law, 3d ed. 229.

In The Exchange, as has always been recognized by this court, it was treated as well settled that a foreign army permitted to march through a friendly country, or to be stationed in it, by permission of its government, is exempt from the civil and criminal jurisdiction of the place. Coleman v. Tenncssee, 97 U.S. 509, 515, 24 L. ed. 1118, 1121; Dow v. Johnson, 100 U.S. 158, 165, 25 L. ed. 632, 634. 'The grant of a free passage,' said Chief Justice Marshall, 'implies a waiver of all jurisdiction over the troops during their passage, and permits the foreign general to use that discipline, and to inflict those punishments, which the government of his army may require.' 7 Cranch, 140, 3 L. ed. 294. That rule, waiving the jurisdiction of the United States over a body of men, and allowing them to be governed, disciplined, and punished by their own officers, applies only to an armed force, segregated from the general population of the country, and lawfully passing through or stopping in the country for some definite purpose connected with military operations.'

This is no such case. This was a squad of men intended, indeed, at some time in the future, to become part of the crew of a ship of war. But they were not yet part of that crew, and were, for six months before the desertion, quartered on shore in the midst of a large city, and were as yet engaged in performing no military or naval duty, beyond the fact that Alexandroff attended the others when sick. The suggestion of the majority of the court that Alexandroff and his associates were sent out by the Russian government 'to take possession of the Variag' must be founded on the statement (which is all that the record contains on the subject) that they were sent out 'for the purpose of becoming part of her crew.'

The permission to a foreign nation to pass troops or munitions of war through the United States has been granted by the Executive Department in a few instances, generally by the Secretary of State. 1 Wharton, International Law Digest, § 13. And there are cases collected by Mr. Cushing, in 7 Ops. of Atty. Gen. 453, in which the President of the United States has for various purposes acted through the Department of the Treasury or some other department within its appropriate jurisdiction. It is not necessary in this case to consider the full extent of the power of the President in such matters.

The request of the representative of Russia on September 24, 1899, was simply for the admission into the United States of 'one officer and fifty-three regular sailors imperial Russian navy, detailed to this country for the purpose of partially manning the cruiser now under construction for the Russian government at Cramp's shipyard in Philadelphia, Pennsylvania.' And the response of the Secretary of the Treasury, following the terms of the request, stated that instructions had been given to admit them without examination, and not to collect the head tax of $1. The other correspondence submitted to this court, and relied on by the petitioner, shows that in June, 1899, the Secretary of the Treasury had given like instructions as to one officer and twenty-nine other sailors; and that, at the request of the Russian ambassador, in December, 1900 (fourteen months after the arrival of Alexandroff and his associates in this country, and eight months after his desertion), the Secretary of State and the Secretary of the Treasury gave precisely similar instructions as to a body of two hundred and eleven seamen, and as to another body of two hundred and thirteen seamen, each sent out to complete the crew of the Variag. It thus appears that Alexandroff and his associates, with the previous detail of thirty persons, together constituted less than one sixth of the intended crew of the Variag.

Moreover, all the letters of the Secretary of the Treasury and of the Secretary of State show nothing more than an admission into the United States without examination, and an exemption from the head tax, of persons intended to become part of the crew of the cruiser Variag. These persons, coming into the United States for a temporary purpose only, were clearly not immigrants, nor liable to the head tax upon immigrants. A like admission and exemption would apply to any civilians employed by the Russian government and coming here temporarily in its service.

It is impossible, therefore, to imply such a waiver of the jurisdiction of the United States over them as in the case of a foreign army marching through or stationed in the United States by consent of the government. And even permission to march a foreign imply a duty to arrest deserters from that imply a duty toarrest deserters from that force.

The question in this case is not one of the mere exemption of Alexandroff from the jurisdiction of the government and the courts of the United States. The question is whether the courts and magistrates of the United States are authorized to exercise affirmative jurisdiction to enforce the control of the Russian authorities over him, after he has escaped from their custody, and to restore him to their control, so that he may be returned to Russia, and be there subjected to such punishment as the laws of that country impose upon deserters.

Nations do not generally, at the present day, agree to deliver up to each other deserters from a military force. But it is usual, in order to prevent the ships of war or the merchant vessels of one country from being rendered unfit for navigation by the desertion of their seamen in the ports of another country, to provide by treaty or convention that the authorities of the latter country, upon the application of a consul of the former, should afford assistance in the arrest and detention, and the return to their ships, of seamen deserting from a vessel of either class. 1 Ortolan, Diplomatie de la Mer, 4th ed., 312, 313; 2 Calvo, Droit International, 5th ed. §§ 1072, 1073; 1 Phillimore, International Law, 3d ed. 547, 685; Wheaton, International Law, 8th ed. 178, note; 1 Moore, Extradition, chap. 19.

The United States have made from time to time such treaties with many nations (a list of which is in the margin ), containing provisions in almost every instance substantially like that of the treaty with Russia of 1832, except that some of them apply only to merchant vessels.

By the Consular Convention with France of November 14, 1788, before the adoption of the Constitution, consuls and vice-consuls were authorized to cause the arrest of 'the captains, officers, mariners, sailors, and all other persons, being part of the crews of the vessels of their respective nations, who shall have deserted from the said vessels, in order to send them back and transport them out of the country.' 8 Stat. at L. 112. That convention was abrogated by the act of July 7, 1798, chap. 67. 1 Stat. at L. 578. But a similar provision was made by the Convention with France of June 24, 1822. 8 Stat. at L. 280. And that provision was carried into effect by the act of May 4, 1826, chap. 36. 4 Stat. at L. 160.

The first general statute on the subject was the act of March 2, 1829, chap. 41 (4 Stat. at L. 359), which, as amended by the act of February 24, 1855 (10 Stat. at L. 614, chap. 123), by allowing United States commissioners to act in the matter, is embodied in § 5280 of the Revised Statutes, under which the application in this case was made, and which applies only to 'any foreign government having a treaty with the United States stipulating for the restoration of seamen deserting.'

The Variag, at the time of Alexandroff's desertion, was indeed, in one sense, a ship, because she had been launched and was waterborne. And, by the terms of the contract under which she was being built, the legal title in her, as fast as constructed, had, vested in the Russian government, so that, without regard to the question whether she was a ship of war, she could not have been subjected to private suit in rem in admiralty. The Parlement Belge, L. R. 5 Prob. Div. 197. But she had not been completed, and was in the custody of the contractors, and their men were still at work upon her; by the express terms of the contract, she might still be rejected by the Russian government, and remained at the risk of the contractors until that government had accepted her or taken actual possession of her; and she had not been fully paid for. She was not equipped for sea, and never had any part of her crew on board, and she had never been accepted, or taken actual possession of, by the Russian government. Alexandroff and his associates were a squad of men, sent out six months before by the Russian government for the purpose of becoming part of her crew, and received wages as members of the Russian navy. But they had never become part of an organized crew, or done any naval or military duty, or been on board of her, or been ordered on board of her; for the whole six months they had lived together on shore; and no regular ship's roll, or other official document, was produced showing that they had actually become part of the crew of the Variag.

The treaty with Russia of 1832 speaks of 'deserters from the ships of war and merchant vessels of their country;' and § 5280 of the Revised Statutes speaks of persons who have 'deserted from a vessel of any such government;' each applying only to those who desert from a ship. Both the treaty and the statute require proof to be made by exhibition of the register of the vessel, ship's roll, or other official document, that the deserter, at the time of his desertion, belonged to, or formed part of, her crew. And the provision of the treaty for the detention of the deserters until 'they shall be restored to the vessels to which they belonged, or sent back to their own country by a vessel of the same nation or any other vessel whatsoever,' necessarily implies that they belong to a completed vessel upon which they could remain from day to day, and the departure of which may require them to be sent back by another vessel. The object of both treaty and statute, as of the treaties with other nations upon the same subject, was not to encourage shipbuilding for foreign nations in the ports of the United States, or to cover unfinished ships and preparations for manning them when finished; but it was to secure the continued capacity for navigation of ships already completely built, equipped, and manned. Both treaty and statute look to a complete ship, and to an organized crew; and neither can reasonably be applied to a ship which has never been completed, or made ready to receive a crew, or had any roll or list of them, or to men who have never been on board the ship as part of her crew. Moreover, the Russian government, as is admitted, had never accepted or taken possession of the ship, and, by the terms of the contract under which she was building, still had the right to reject her. So long as they had that right, no body of men could be considered as actually part of her crew, whatever they might have been after her acceptance. The evident intent of the statute, as of the treaty, is to afford a remedy for the common case of sailors deserting their ship, on her coming into port, at the risk of leaving her with no sufficient crew to continue her voyage; and not to the case of a ship which has never been completed, or equipped for sea, or to persons collected together on shore for an indefinite period, doing no naval duty, though intended ultimately to become part of her crew.

The various treaties of the United States with foreign nations apply in a few instances, as in the treaties with Spain of 1819, and with Great Britain of 1892, to merchant vessels only, but, for the most part, as in the treaty with Russia, to both ships of war and merchant vessels. When they apply to both (except in the treaties with Peru), deserters from ships of war are put upon the same footing with deserters from merchant vessels; and no greater authority is given to arrest and surrender in the case of the one than in that of the other. Could it be contended that the authority should be extended to the case of sailors who had been collected together on shore for the purpose of becoming, in the future, part of the crew of a merchantman still in the course of construction, and not yet ready to receive them?

The statutes regulating the contract between the owner of a merchantman and his sailors do not appear to us to have any bearing upon the construction and effect of this treaty. Those statutes relate to seamen who, by their shipping articles, have agreed to render themselves on board at a certain time, and to their right to compensation and liability to punishment, or to forfeiture of wages, after that time. Rev. Stat. §§ 4522, 4524, 4527, 4528, 4558; act of December 21, 1898, chap. 28, §§ 2, 9 (30 Stat. at L. 755, 757). And § 4599 of the Revised Statutes (repealed by § 25 of the act of 1898) provided for the arrest and detention, by police officers, of any seaman, having signed such articles, who 'neglects or refuses to join, or deserts from, or refuses to proceed to sea in,' his vessel. The clause 'neglects or refuses to join' would have been superfluous if legally included in the word 'deserts.' The treaty contains no such clause.

The treaty, as already stated, requires the fact that the deserter was part of the crew of the vessel to be proved by the exhibition of the register of the vessel, the roll of the crew, or other official document. Attorney General Black was of opinion that an exhibition of the original ship's roll, or a corresponding document containing the names of the whole crew, was essential, and could not be supplied by a copy of an extract from the roll, containing the deserter's name; and said: 'It might be convenient, in cases like this, to dispense with the production of the original document, and let the rights of the person claimed as a deserter depend on the mere certificate of a consul; but a written compact between two nations is not to be set aside for a shade or two of convenience more or less.' 9 Ops. of Atty. Gen. 96. However that may be, in this case there is no pretense that the Variag had, or was in a condition to have, any roll or list of her crew; and at the hearing it was not admitted that there was any such roll or list, or that Alexandroff was a member of her crew, but only that he was a member of the Russian navy, sent out for the purpose of becoming part of her crew. The treaty cannot be construed as extending to the case of a ship which has never been completed, or ready to receive her crew, or had any roll or list of the crew; or to a small part of the men, ultimately intended to form part of her crew, who have never been such, nor ever been on board, but have remained for six months on shore, doing no naval duty.

Moreover, it being quite clear, and indeed hardly denied, that the Variag, in her existing condition, was not a Russian ship of war exempt from the jurisdiction of the United States and subject to the exclusive jurisdiction of her own country, it would seem necessarily to follow that she was not a ship of war in the sense that the authorities of the United States could take affirmative action to enforce the jurisdiction of that country over her or over the men intended to become part of her crew.

The necessary conclusion is that neither the treaty with Russia of 1832, nor § 5280 of the Revised Statutes, gave any authority to the United States commissioner to issue the warrant of commitment of Alexandroff.

It was argued, however, at the bar, that, if this case did not come within the treaty or the statute, the United States were bound, by the comity of nations, to take active steps for the arrest of Alexandroff, and for his surrender to the Russian authorities. But this position cannot be maintained.

The treaties of the United States with Russia and with most of the nations of the world must be considered as defining and limiting the authority of the government of the United States to take active steps for the arrest and surrender of deserting seamen.

These treaties must be construed so as to carry out, in the utmost good faith, the stipulations therein made with foreign nations. But neither the executive nor the judiciary of the United States has authority to take affirmative action, beyond the fair scope of the provisions of the treaty, to subject persons within the territory of the United States to the jurisdiction of another nation.

The practice of the Executive Department, from the beginning, shows that such authority does not exist, in the absence of express treaty or statute. The precedents on the subject are collected in 1 Moore on Extradition, §§ 408-411, and we have examined the archives of the Department of State, to which upon such a subject we are at liberty to refer. Jones v. United States, 137 U.S. 202, 216, 34 L. ed. 691, 697, 11 Sup. Ct. Rep. 80; Underhill v. Hernandez, 168 U.S. 250, 253, 42 L. ed. 456, 457, 18 Sup. Ct. Rep. 83; The Paquete Habana, 175 U.S. 677, 696, 44 L. ed. 320, 20 Sup. Ct. Rep. 290.

In 1802, in the administration of President Jefferson, the British Charg e d' Affaires complained to Mr. Madison, Secretary of State, of the refusal of the collector of customs at Norfolk in Virginia to cause a seaman, who had deserted from a British ship of war, to be surrendered, on an application made by her captain, through the British consul at that port. Mr. Madison answered: 'It need not be observed to you, sir, that a delivery in such cases is not required by the law of nations, and that in the treaty of 1794 the parties have forborne to extend to such cases the stipulated right to demand their respective citizens and subjects. It follows that the effect of applications in such cases must depend on the local laws existing on each side. It is not known that those in Great Britain contain any provisions for the delivery of seamen deserting from American ships. It is rather presumed that the law would there immediately interpose its defense against a compulsive recovery of deserters. In some of the individual states the law is probably similar to that of Great Britain. In others it is understood that the recovery of seamen deserting from foreign vessels can be effected by legal process.' And, after stating that there was no law for their recovery in Virginia, he concluded: 'This view of the subject necessarily determines that the President cannot interpose the orders which are wished, however sensible he may be of the beneficial influence which friendly and reciprocal restorations of seamen could not fail to have on the commerce and confidence which he wishes to see cherished between the two nations.' 14 MSS. Domestic Letters, 89, in Department of State.

In 1815, in the administration of President Madison, the British minister having requested the interposition of the government of the United States to cause the delivery of seamen who had deserted from a British ship of war, Mr. Monroe, Secretary of State, answered: 'I regret that there is no mode in which this government can interpose to accomplish the object you have in view. Neither the laws of the United States nor the laws of nations have provided for the arrest or detention of deserters from the vessels of a friendly power. It is hoped, however, that this is one of the subjects which may hereafter be satisfactorily arranged by treaty between the two nations.' 1 Moore, Extradition, § 408.

In 1846, in President Polk's administration, the British minister applied for the surrender of a seaman who had deserted from a British ship of war, and was serving on a war vessel of the United States; and Mr. Buchanan, Secretary of State, replied: 'Your communication has been submitted to the President; and I am instructed to express his regret that he cannot comply with your request. The case of deserters from the vessels of war of the respective nations is not embraced by the 10th article of the treaty of Washington providing for extradition in certain cases; and without a treaty stipulation to this effect the President does not possess the power to deliver up such deserters. The United States have treaties with several nations which confer upon him this power; but none such exists with Great Britain.' 7 MSS. Notes to Great Britain, 147, in Department of State.

In September, 1864, in the administration of President Lincoln, while the United States steamship Iroquois was lying in the Downs, three of her seamen deserted. They were arrested on complaint of the United States consular agent, brought before a police magistrate at Dover, and discharged by him, on the ground that, as they had violated no law of England, there was no authority for their arrest and detention. Upon the matter being brought by Mr. Adams, the American minister, to the attention of the British government, Lord Russell replied 'that there is no law in force in this country by which these deserters could be given up.' 1 Moore, Extradition, § 409; Dip. Cor. 1864, pt. 2, 336.

In July, 1864, Lord Lyons, the British minister, submitted to Mr. Seward, Secretary of State, a statement that two apprentices, employed on board the British barque Cuzco, had deserted at Valparaiso and enlisted on a United States ship of war; and asked for an investigation. On December 4, 1864, Mr. Seward communicated the results of the investigation to the British charg e d'affaires; and informed him that, owing to the action of the British government in the case of the deserters from the Iroquois, the United States did not deem themselves under either a legal or a moral obligation to deliver up the deserters from the Cuzco. On February 23, 1865, the British charg e d'affaires, by instructions from his government, replied that it was unable to follow the principle or reason of the resolution of the United States government, and insisted that 'it is in the power of the naval officers of the United States (as it would be in that of Her Majesty's naval officers in a like case) to deliver up on the high seas, or in any foreign port, under the instructions of their government, deserters from foreign vessels who may without lawful authority be found on board one of the ships of war of the United States;' but he distinctly admitted and asserted: 'But when a foreign deserter is on shore in Great Britain (and Her Majesty's government presume the case would be the same in the United States), the power of Her Majesty's naval officers and of Her Majesty's government itself over him is at an end; he can then only be detained or delivered up for some cause authorized by the law of the land.' The case was not further pursued. 1 Moore, Extradition, § 409, and note.

The earliest treaty between the United States and Great Britain on the subject is that of June 3, 1892, which applies only to merchant seamen, being limited to 'seamen who may desert from any ship belonging to a citizen or subject of their respective countries.' 27 Stat. at L. 961.

The first treaty with Denmark on the subjest is that of July 11, 1881, concerning 'deserters from the ships of war and merchant vessels of their country.' 13 Stat. at L. 606. In 1853, in the administration of President Pierce, on a question of the arrest of a deserter from a Danish ship and his discharge by the authorities in New York (the treaties between the United States and Denmark not then containing any stipulation for the restoration of deserting seamen), Mr. Cushing, as Attorney General, gave an opinion to Mr. Marcy, Secretary of State, that without such a treaty the executive or judicial authorities of the United States had no power to arrest, detain, and deliver up a Danish mariner on the demand of the consul or other agents of Denmark, and said: 'The summary arrest and delivery up of deserters from the service of other nations, like the surrender of fugitives from their criminal justice, when found in the territory of a country into which they have escaped or fled, is not a duty absolutely enjoined by the law of nations, but a subject of special convention. So, also, are the authority and jurisdiction of consuls and commercial agents in regard to demanding and superintending the arrest, detention, and surrender, either of deserters from service or fugitives from justice.' 6 Ops. of Atty. Gen. 148, 154.

This uninterrupted course of action of the Executive Department, beginning almost a century ago, must be considered as conclusively establishing that, independently of a treaty, no international obligation exists to surrender foreign seamen who have deserted in this country.

It is hardly necessary to add that the suggestion of the district attorney can have no effect, other than to call the attention of the court to the facts of the record. The question whether those facts justified the commitment of the prisoner by the United States commissioner is a question to be decided, not by the Executive Department or by any of its officers, but by the courts of justice.

According to our view of the facts, and for the reasons and upon the authorities above stated, we are of opinion that the commissioner had no authority to commit the prisoner, that his imprisonment was unlawful, and that he is entitled to be discharged.