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 por[457]tion of the territorial *jurisdiction by allowing the troops of a foreign prince to pass through the territory.

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

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 Eng-share its privileges, they are exempt from lish 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 [458] 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.

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. Tennessec, 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[ 459] 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 We find no precedent, either in our own a large city, and were as yet engaged in decisions or in the books of international performing no military or naval duty, belaw, for extending the exemption to an un-yond the fact that Alexandroff attended the completed ship, or to sailors who have never been on board of her, although intended to

others when sick. The suggestion of the majority of the court that Alexandroff and

Moreover, all the letters of the Secretary of the Treasury and of the Secretary of Stat. at L. 488.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 ap- 504. ply to any civilians employed by the Rus sian 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'

[462]*provisions in almost every instance substan- |of her; and she had not been fully paid for.

tially like that of the treaty with Russia She was not equipped for sea, and never had of 1832, except that some of them apply only any part of her crew on board, and she had to merchant vessels. never been accepted, or taken actual possesBy the Consular Convention with Francesion of, by the Russian government. Alexof 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. [463]8 Stat. at L. 280. And that *provision was carried into effect by the act of May 4, 1826,"deserters from the ships of war and merchap. 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

Hayti. November 3, 1864; 13 Stat. at L.
727.

Italy. February 8, 1868; 15 Stat. at L. 610.
May 8, 1878; 20 Stat. at L. 730.

androff 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 chant vessels of their country;" and §*5280[464] 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 Portugal. August 26, 1840; 8 Stat. at L.

566.

Prussia. May 1, 1828: 8 Stat. at L. 382.
Roumania. June 17, 1881: 23 Stat. at L.
December 18, 1832; 8 Stat. at L.
December 6, 1870; 18 Stat. at L.
San Salvador. January 2, 1850; 10 Stat. at
L. 897.
Sardinia. November 26, 1838; 8 Stat. at L.

518.

Spain. February 22, 1819; 8 Stat. at L. 262. Sweden and Norway. July 4, 1827; 8 Stat. at L. 352.

Tonga. October 2, 1886; 25 Stat. at L. 1442. Two Sicilies. December 1, 1845: 9 Stat. at L. 838. October 1, 1855; 11 Stat. at L. 651. Venezuela. August 27, 1860; 12 Stat. at L

1158.

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. More-
over, the Russian government, as is admit-
ted, had never accepted or taken possession
of the ship, and, by the terms of the con-
tract 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 consid-
ered 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 voy-mitted that there was any such roll or list,
age; 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.

responding 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[466]
the mere certificate of a consul; but a writ
ten compact between two nations is not to
be set aside for a shade or two of conven-
ience 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 ad-

The various treaties of the United States [465]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 I.. 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.

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 sea

men.

These treaties must be construed so as to carry out, in the *utmost good faith, the stip-[467] ulations therein made with foreign nations. But neither the executive nor the judiciary of the United States has authority to take The treaty, as already stated, requires the affirmative action, beyond the fair scope of fact that the deserter was part of the crew the provisions of the treaty, to subject perof the vessel to be proved by the exhibition sons within the territory of the United of the register of the vessel, the roll of the States to the jurisdiction of another nation. crew, or other official document. Attorney The practice of the Executive DepartGeneral Black was of opinion that an ex-ment, from the beginning, shows that such kibition of the original ship's roll. or a cor- authority does not exist, in the absence of

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.

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 Chargé 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 inust 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. În 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, how-chargé d'affaires; and informed him that, ever sensible he may be of the beneficial influence which friendly and reciprocal restor[468]ations of seamen could not fail to have on the commerce and confidence which be wishes to see cherished between the two nations." 14 MSS. Domestic Letters, 89, in Department of State.

In Septeinber, 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 [469] 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

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 chargé 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 admit

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, how-ted and asserted: "But when a foreign deever, 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'

serter is on shore in Great Britain (and Her Majesty's government presume the case would he 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