Motherwell v. United States ex rel Alexandroff

Citation107 F. 437
Decision Date25 February 1901
Docket Number22.
PartiesMOTHERWELL et al. v. UNITED STATES ex rel. ALEXANDROFF.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Bradford District Judge, dissenting.

John F Lewis and Samuel Dickson, for appellants.

Bernard Harris and Isaac Hassler, for appellee.

Before DALLAS and GRAY, Circuit Judges, and BRADFORD, District Judge.

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 her 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 'captain Vladimir Behr, Master of 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.

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 reclaimation 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. 'Expressing unius est exclusio alterius.' 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:

'The 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 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. Sec. 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 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. From 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 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 deserters, 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 interposition may be required to such as may be made...

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