Motherwell v. United States ex rel. Alexandroff

DALLAS, Circuit Judge. Leo Alexandroff came to this country in October, 1899, in company with 53 men and an officer, all of whom, as well as himself, were members of the Russian navy. They were sent here to form part of the crew of the cruiser Variag, which was then in course of construction for the Russian government at the city of Philadelphia. The vessel was nearing completion, but was still on the stocks, and had not been accepted, when Alexandroff, who had not been aboard of her, went, without leave, from Philadelphia to the city of New York, where he soon obtained employment, and formally declared his intention to become a citizen of the United States. Having thus manifested his purpose to renounce the service in which he was enrolled, he was arrested upon the written request of the Russian vice consul, and on June 1, 1900, was committed by a United States commissioner to the prison of Philadelphia county, upon a mittimus which recited that the cause of his commitment was “desertion from the imperial Russian cruiser Variag,” and that he had been apprehended upon the “complaint of the captain of the said cruiser Variag, in accordance with the terms of the treaty between the United States and Russia.” Thereupon a writ of habeas corpus for his production was allowed by, and issued out of, the district court of the United States for the Eastern district of Pennsylvania. It was directed to the keeper of the prison, and to “Gaptain Vladimir Behr, Master of1 the Russian Cruiser Variag,” but the only return thereto was made by the former, who produced the prisoner and submitted a copy of the commissioner’s precept. — 439 — But a single question was argued and decided in the court below, namely, “whether article 9 of the treaty with Russia, signed in December, 1832, under which the arrest was made, justified the prisoner’s detention.” The learned district judge was of opinion that it did not, and we concur in his conclusion. The clause referred to is as follows: “The said consuls, vice-consuls and commercial agents are authorized to require the assistance of the local authorities for search, arrest, detention and imprisonment of the deserters from 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 such deserters, proving by the exhibition of the registers of vessels, the rolls of the crew, 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.” The federal courts should, of course, unhesitatingly and with scrupulous fidelity exercise any jurisdiction they possess to effectuate the treaty obligations of the United States. But the scope of such obligations, as of ordinary contractual engagements, is to be determined by the terms of the instrument creating them; and by no reasonable construction of the article in question can it be made to comprise any undertaking with respect to deserters generally. On the contrary, deserters from ships of war and merchant vessels are distinctly specified, and therefore to such deserters only can the mutual stipulations of the contracting governments be related. “Expressio unius est exclusio alteráis.” If more had been intended, less would have been said; but it is in reality manifest that such an event as we are now concerned with was not contemplated at all, for it could not then have been anticipated that the circumstances necessary to its occurrence would ever arise. As was said by the learned judge below: “Tbe article In question is dealing with completed vessels, manned by organized crews, that may be visiting the ports of the foreign power, and to that subject its provisions must be confined.” The unfinished Variag was not a “ship,” in the sense in which that word was used in the treaty. Completed ships were exclusively in mind. This, we think, is evident from the whole tenor of the article, and is made especially apparent by its provision for proof by documents which ordinarily pertain to perfected and entire vessels only. She certainly had not become a Russian ship, for under the contract for her construction the Russian government might still have rejected her. Moreover, it is hardly supposable that she would, in her then condition and situation, have had a crew, and the fact is that she had none. A number of men had been assigned for that service, but, as they had not entered upon it, there was as yet no crew in being, and Alexandroff’s abandonment of those who were to form part of the projected crew cannot be said to have been a desertion “from the ship,” for the undisputed evidence is that he had not at any time been aboard of her. The conclusion seems to be inevitable that the learned district judge was right in holding that the treaty under which the arrest was made did not justify it; but it is now further contended that, as an act of comity, irrespective of the treaty, an — 440 — order should have been made for the surrender of Alexandroff to the Russian vice consul or to Capt. Behr, and this contention has had our careful consideration.- In proceedings upon habeas corpus the authority of the courts of the United States is not so restricted as to compel them in every instance either to discharge the prisoner absolutely, or to remand him to the custody of the person producing him. These courts, at least, are empowered and required to “dispose of the party as law and justice require” (Rev. St. § 761), and if, under the law of nations and the facts of this case, any representative of the Russian government was entitled to have Alexandroff delivered to him, we do not doubt that he should have been so disposed of; and hence we are brought to inquire whether, under any rule of comity, having the force of law, and therefore judicially cognizable, such delivery was demandable. In dealing with this question we will assume the correctness of the proposition that, where sufficient ground for his detention is shown, a prisoner is not to be discharged for defects in the original arrest or commitment; but we cannot accede to the theory advanced in argument, that the keeper of the county prison, in detaining Alexandroff, was acting as the agent of Oapt. Behr. He had no right to deprive him of his personal liberty upon the mere behest of any man, and it would be unjust to ascribe to him the arrogation of any such right. He detained the prisoner by virtue of a warrant issued by a public officer in seeming conformity with law, and that warrant, and nothing else, was set up in justification. It did, it is true, direct that the prisoner, unless discharged by due course of law, should be kept “subject to the order of the Russian vice consul at Philadelphia or of the master'of the cruiser Variag,” but this direction did not constitute the jailer the agent of either of those persons. It correctly defined the duty which would have devolved upon him if the commitment had been rightfully made under the treaty of 1832, but, as it was not, the direction which was given in supposed compliance with that treaty was simply inapposite and of no effect whatever. The situation, then, was, in fact and in law, this: Alexandroff was neither in the actual custody of Capt. Behr, nor under his control. He was detained solely and exclusively by the keeper of the prison, and Capt. Behr’s inclusion in the writ of habeas corpus was unnecessary and redundant. He was not required to answer it, and upon the hearing it appeared that no order for the prisoner’s discharge could with propriety or efficacy have been directed to him. In fact, he was not ordered to do anything whatsoever. His real position, therefore, was not that of a defendant who is constrained to respond to a demand, but of an intervener who himself asks the action of the court for the maintenance of a right to which he claims he is entitled. Consequently the precise question is not as to whether the courts of this country should compel an officer of a foreign navy to release a man who had come here under his command, but as to the right of such officer to require their assistance for the recapture of a deserter. Prom first to last this right has been asserted and insisted upon, and, if Alexandroff had been a member of a crew and had deserted from a Russian ship, its existence would be freely granted; for with respect — 441 — to “such deserters” it was unquestionably established by the treaty which has been discussed. But it is difficult to understand why the provision of that instrument requiring the local authorities, including judges, to surrender deserter's, should have been confined to deserters from ships of war and merchant vessels, if, as is now contended, the law of nations had already imposed upon the courts the duty of surrendering all naval deserters, whether from ships of war or not. “Treaties are usually allied with a change of law” (Hall, Int. Law [4th. Ed.] 12); and it is plain, we think, that the particular article under consideration was intended to create a new obligation, and not merely to prescribe how a subsisting one should (in certain only of the cases covered by it) be performed. Congress has quite distinctly indicated that its understanding of the matter accords with our own; for, in declaring the duties of the courts upon the subject, it has expressly restricted the applications upon which their interposilion may be required to such as may be made on behalf of “any foreign government having a treaty with the United States” (Rev. St. § 5280); and, in our opinion, this restriction does not conflict with any duty imposed by international law. That the public vessels of a state are exempt from attachment or arrest under the municipal law of a foreign nation, even when found in waters within its jurisdiction, must be acknowledged. The Exchange v. McFaddon, 7 Cranch, 116, 3 L. Ed. 287. And “it is well settled that a foreign army permitted to march through a friendly country, or to be stationed in it by permission of its government or sovereign, is exempt from the civil and criminal jurisdiction of the place.” Coleman v. Tennessee, 97 U. S. 509, 24 L. Ed. 1118. But neither of these immunities is now in question. Neither of them has been invaded. Neither of them is impugned. No attempt has been made to subject a Russian vessel to any process of our courts, nor has exemption from their jurisdiction been denied to any member of the Russian army or navy. Alexandroff was arrested in pursuance of a request made by the Russian vice consul himself, and he was not in the custody of Capt. Behr at the time of his discharge. Consequently, neither the vice consul nor Capt. Behr was, at any stage or in any manner, coerced by or under the authority of the United States. The commitment was made upon the assumption that it was called for by the treaty of 1832, and when it appeared to the court inquiring “into the cause of restraint of liberty” (Rev. St. § 752) that this assumption was an erroneous one, it became the plain and imperative duty of that court, in the absence of any other ground for detaining the prisoner, to order his release. We agree that the application for his delivery to Capt. Behr legitimately presented a cognizable demand; but upon such an application, the party making it, who seeks the judgment of the court in his favor, becomes the actor. He invites the exercise of its jurisdiction. It is not imposed upon him. Furthermore, the rule of comity which accords to an army of one nation, when within the territory tof another by its permission, the privilege which is here asserted, is*not, in our opinion; pertinent to this case. We do not doubt that it is applicable to a marine force as well as to a land force, but as to either it respects organized bodies — 442 — only. A single regiment or a single crew, for instance, may be entitled to its allowance, but exemption from compliance with the law of the land is not to be conceded to any man or number of men merely because he or they happen to be in the military or naval service of a foreign state. Capt. Behr and those who came with him were members of the Bussian navy, but as an aggregation they were not an integral component of it. It was intended that they should become part of an organization which was to be comprised in that navy, but that organization was still unformed. The men were, by Bussian law, subject to the captain’s control; but this did not of itself make them, when conjointly considered, a constituent unit of the Bussian navy, for at the time in question no such unification had been effected. If there had been but 2 or 3, instead of more than 50, men under his command, it could hardly have been argued, we think, that they and he should, for the present purpose, be regarded as representative of the Bussian navy; and surely the existence or nonexistence of such representative character cannot be dependent upon the number of persons who may be alleged to be clothed with it. The true criterion rests upon the obvious distinction between the concrete parts into which a navy is usually divided and its individual members. The former stand for the navy; the latter do not. The individuals who were detailed for the purpose of partially fiianning the Variag were not marching through this country; nor were they, in the ordinary sense of the word, stationed here. If the Bussian government had requested their recognition and admission as a distinctive part of its navy, and that request had been acceded to by the executive department of our government, a different situation would have been presented, with respect to which we need express no opinion; for the fact is that no permission for their landing was either asked or given, and we have not been persuaded that any one concerned supposed it to be requisite, or had any thought of invoking or conceding any immunity which might have accrued from it. The treasury department, by its letter of October 4,1899, did not assume to confer or define any privileges other than those which were mentioned in it. The Bussian ambassador, to whom it was probably addressed, was merely informed that the usual examination would be waived, and that no head tax would be demanded; and it is simply impossible to infer from this relinquishment of those particular exactions that it was either intended or understood that the persons referred to were, after landing, to be regarded as or treated like a foreign army. Such effect could not be attributed to that communication without grossly perverting its plain meaning, and transforming an act of common courtesy on the part of the treasury department with relation to matters within its province into an international compact which it would have no authority whatever to make. The learned district attorney for the Eastern district of Pennsylvania, acting by executive authority, has suggested in writing that Alexandroff should be remanded to the county prison to await the orders of Capt. Behr. This suggestion will now be filed in the office of the clerk of this court, but, as it is not, in our opinion, well founded in law, it necessarily results that it cannot prevail. It presents no — 443 — facts which do not appear upon the record before us, and the legal effect of those facts is for determination exclusively by the court. The present case is not, in this respect, at all like that of The Exchange, in which Marshall, C. J., observed: “If this opinion bo correct, there seems to be a necessity for admitting that the fact might be disclosed, to the court by the suggestion of the attorney for the United States.” We have reached the conclusion that neither the treaty which was at first relied on, nor the rule of comity which has since been pressed upon our attention, is applicable to the facts now presented; and therefore the order which was made by the district court must be, and is, affirmed. GRAY, Circuit Judge. Although I agree in the conclusion reached by Judge DALLAS, I deem it necessary to state, as briefiy as possible, the grounds upon which I hold that the relator should he discharged. The learned judge of the court below was undoubtedly right, as the case was presented to him, in declining to hold Alexandroff, and in ordering his discharge. We surrender deserting seamen from foreign vessels, whether of war or of merchant marine, only under the obligation of treaties (1 Moore, Extrad. p. 61.2, § 408) ; and it was under the provisions of our treaty with Russia in that regard that it was claimed that Alexandroff was arrested and held subject to the order and requisition of Capt. Behr, who was in command of the detail of men belonging to the Russian navy, and awaiting the completion of the ship of war Variag, then on the stocks at Cramps’ Shipyards in Philadelphia. That his arrest and detention under color of process issued in pursuance of the stipulations of said treaty, and of the act of congress passed to carry out the same, were unjustified and illegal, has been fully and clearly shown in the principal opinion in this case. It is also clear, as stated in that opinion, that under the provisions of section 761 of the Revised Statutes the court below were not constrained to set the relator at liberty, even though the particular proceedings, and commitment pursuant thereto, by which he was held, were unwarranted and illegal. If, under the obligations of public law, or of the comity usually exercised between friendly nations, there was a duty on the part of the government of the United States to aid Capt. Behr in the capture of a deserter from his force, or to recognize the right of the commander of that force, in the exercise of military discipline, to cause his forcible arrest and detention by those under his command, it would have been the judicial duty of the court below to surrender the relator into the custody of the commander of that force, notwithstanding the indefensibility of the particular proceedings under which he was arrested. No claim on this ground appears to have been urged at the hearing of the cause in the court below. Notwithstanding this, we agree in holding that this contention may be made upon proper grounds before this court, and, if sustained, this court would he authorized to, and should, reverse the judgment of the court below, and order the relator to be delivered to the custody of the commanding officer of the Russian naval — 444 — fdrce. Accordingly, it has been urged with force and ability in the argument of this appeal that Alexandroff was a member of a detail of the military forces of the czar of Russia; that, organized as such, under command of piroper officers, this military detail came to this country to form part of the crew of a Russian man of war then building for the Russian government at Philadelphia, and proceeded from the port of debarkation to that city, there to await the completion of the ship which they were intended to man. The claim is made that under the rules of international law this force was entitled to have extended to it the comity which is due where the army or an organized portion of the military force of one sovereign enters upon or crosses the soil of another with the permission of the latter. It is true that, if such permission is given, then there is implied a right or privilege in the commander of such organized military body to enforce discipline, which would include the right to arrest and detain a deserter, and also to be exempt from the operation of the civil and criminal laws of the country through which he is passing or in which he is remaining. But while this comity and these privileges and immunities flow from and are implied in such a permission from the sovereign of the soil, and do not require to be distinctly enumerated or stated, it is also true that the permission of such sovereign must be express, and is not to be implied. This seems the settled doctrine, founded on the opinion of Chief Justice Marshall in the celebrated case of The Exchange, 7 Craneh, 116, 3 L. Ed. 287, which has not only stated, but has become the received expression of, international law on this subject. While it is usual to speak of the “armies” of one sovereign crossing or remaining upon the soil of another, with the permission of the latter, as entitled to this comity, there is nothing in the reason of the rule, or of the authorities in support of it, which would deny this comity to any organized military force, however small, provided it was large enough to be susceptible of military organization and of acting offensively or defensively. In this case, therefore, I am of opinion that the detail of 58 men, if organized as part of the military and naval force of Russia, and coming here for the purpose disclosed in the record, might sufficiently possess the character that would, so far as this case is concerned, be entitled to receive and enjoy the comity and privileges flowing from such a permission as we have already described, if properly granted by our government. The record, however, is fatally defective, in that it does not disclose the absolutely essential fact that permission was given to such a force, or to the representative of its sovereign, to enter this country as an organized military body. In a matter so important as the assertion of the sovereignty of another country upon our soil, nothing but the clearest evidence of that executive permission from our government, which international law demands as a prerequisite to the enjoyment of those privileges which flow from comity, will justify the assertion of such a claim. When asked for the evidence of such executive permission, we are pointed by the appellants to the record, for a copy of the letter of the ácting secretary of the treasury, dated October 4th, 1899: — 445 — “No. 19,805. Treasury Department. “Office of the Secretary. “Washington, D. O., October 4, 1899. “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 Now York to admit without examination the detail of one officer and flfty-three regular sailors whom yon 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. “Respectfully yours, O. L. Spaulding, Acting Secretary. “T. U. S.” This letter, it will be observed, has no address, and there is nothing in the record to show to whom it was written. We are told by counsel, and it seems to be assumed, that it was written to the Russian ambassador; but, even when we assume this, it tails far short of conveying to this court the information that is absolutely necessary for the contention of the appellants in this case, to wit, that the requisite permission was granted by the president to the Russian government to land, march across our countiy, and indefinitely hold therein a military force of the czar of Russia. Whether they were admitted as a military organization or not, they clearly were not immigrants, and therefore uot amenable to the immigration inspection laws, nor to the head tax imposed and collected by the customs authorities from immigrants. The same response would have been made as to any civil employes of the Russian government coming here temporarily in the government service. There is no evidence whatever that more was intended on either side. The evidence is .quite the other way. It does not appear what the request of the Russian ambassador was, to which this letter is said to be a reply. The wording of the treasury department’s letter does not necessarily imply a request from the Russian government that these men should he permitted to land as a military force. For an illustration of how information from the executive is conveyed through the secretary of state, in direct and categorical terms, see letter of Mr. Webster, secretary of state, to Mr. Crittenden, attorney general, March 15, 1841, in the Case of McLeod, 6 Webst. Works, 262. And it is to be observed that, where the executive permission in question is given, it is given by the president, through the secretary of state, who is the sole organ of executive authority for communication with foreign powers. Rut reliance is also placed upon a matter that does not belong to the record, and forms no part of the proceedings in the court below. We refer to the suggestion made in this court for the first time by the district attorney of the United States for the Eastern district of Pennsylvania. It is claimed that this suggestion, purporting to be made by the direction of the executive authority of the United States, is binding upon this court. We do not deny that a suggestion so made by the proper law officer, representing in that regard the executive, might be an appropriate vehicle to convey from the executive to this court information of the fact, if fact it be, that this detail of men — 446 — from the Russian navy, under Capt. Behr, had received the permission of the executive of this country to land at New York, cross over to Philadelphia, and there remain as a part of the organized military force of the czar of Russia. It may be admitted that direct and positive information so given would conclude this court as to the question of fact which was the subject of such information, and thus change the aspect under which we' are now compelled to view the case. But no such information from the executive was conveyed, or attempted to be conveyed, by the suggestion filed. The district attorney merely undertakes, in obedience to the stated direction of the executive, to call the attention of this court to the facts disclosed in the record, and to state argumentatively a construction which he thinks should be placed thereon. The interpretation of the record in this case is the function of the court, and not of the executive, and the suggestion is in this respect irrelevant. The suggestion of the district attorney, as we have seen, does not disclose the fact of any permission having been given by the executive to the Russian authorities to land and maintain this detail of men as a military organization of the Russian government. It does not even expressly state that the executive of the United States, because of the facts recited from the record, recognizes the naval detail under Capt. Behr as an organized military force present on our soil by the requisite permission of the executive authority of this country. International law does not sanction the intrusion of the military forces of one sovereign upon the soil of another by any implied permission of the latter. The presence of such an armed body is so serious and important a matter, involving as it does a diminution of the sovereignty of a country whose soil is thus occupied, that nothing but express permission from the sovereign of such country can justify it. Without such permission, such intrusion is a hostile act, and would have to be defended by the sovereign of such troops as an act of war, or as justified by some supreme necessity, which comity would require to be accepted as an excuse. _ It is true that a different rule obtains in the case of the ships of war of one sovereign visiting the ports and waters of another. There is an implied authority among nations to tolerate this, and extend to such visits an international comity founded on universal custom and usage among nations. This difference results obviously from the different nature of the intrusion in the one case from that in the other. Ships of war, from their vagrant character, constantly demand the hospitality of foreign waters. They were made to traverse the waters of the world, and all nations find that their interests and security demand free ingress to and egress from the ports of friendly nations. The character of their operations and activities differs as widely from those of an army as the sea does from the land. Yet, as we have seen, deserters from such ships in a foreign port, though there by the implied permission of its sovereign, cannot be recaptured, except in pursuance of the stipulations of a treaty. Nor can the rule of comity here in question be invoked for such" a ship’s company, or a portion thereof, when landed on foreign soil. The permission implied in case of the ship of war does not extend to the crew or ship’s company when landed. When they go ashore, even — 447 — as an organized body, they ordinarily become subject to the local laws. I am of opinion, therefore, that there is no evidence, either in the record of this case or in the suggestion filed by the district attorney, that the permission of the executive, requisite to invoke the exercise of ihe comity claimed, was ever granted to the Russian government or its representative in respect to this detail of men under Oapt. Behr.