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 [460] 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 col lect 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 armed force through the country does not imply a duty to arrest 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[461] 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 margint), containing †Austria. May 8, 1848; 9 Stat. at L. 946. July 11, 1870; 17 Stat. at L. 828. Belgium. November 10, 1845; 8 Stat. at L. 612. December 5, 1868; 16 Stat. at L. 761. March 9, 1880; 21 Stat. at L. 781. Bolivia. May 13, 1858; 12 Stat. at L. 1020. 397. Central America. December 5, 1825; 8 Stat. at L. 336. Chile. May 16, 1832; 8 Stat. at L. 440. Colombia. October 3, 1824: 8 Stat. at L 318. Congo. January 24, 1891; 27 Stat. at L 930. Denmark. July 11, 1861; 13 Stat. at L. 606. Dominican Republic. February 8, 1867; 15 Stat. at L. 488. Ecuador. June 13, 1839; 8 Stat. at L. 548. France. November 14, 1788; 8 Stat. at L. 112. June 24, 1822; 8 Stat. at L. 280. February 23, 1853: 10 Stat. at L. 997. German Empire. December 11, 1871; 17 Stat. at L. 929. Great Britain. June 3, 1892; 27 Stat. at L. 961. Greece. December 22, 1837; 8 Stat. at L. 504. Guatemala. March 3, 1849; 10 Stat. at L. 887. Hanover. May 20, 1840; 8 Stat. at L. 556. Ilanseatic Republics. June 4, 1828; 8 Stat. at L. 386. Hawaiian Islands. December 20, 1849;9 Stat. at L. 980. [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 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. [463]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 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. Japan. November 22, 1894; 29 Stat. at L. 852. Madagascar. February 14, 1867; 15 Stat. at L. 493. 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[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 Mecklenburg-Schwerin. December 9, 1847; 9 Mexico. April 5, 1831; 8 Stat. at L. 424. 668. 566. Portugal. August 26, 1840; 8 Stat. at L. Prussia. May 1, 1828; 8 Stat. at L. 382. Roumania. June 17, 1881: 23 Stat. at L. 714. Russia. December 18, 1832; 8 Stat. at L. 448. 744. Salvador. December 6, 1870; 18 Stat. at L. L. 897. Sardinia. November 26, 1838; 8 Stat. at L. 518. Spain. February 22, 1819; 8 Stat. at L. 262. New Granada. December 12, 1846; 9 Stat. 868. Peru-Bolivia. November 13, 1836; 8 Stat. at L. 494. Peru. July 26, 1851; 10 Stat. at L. 944. September 6, 1870; 18 Stat. at L. 714. August 31, 1887; 25 Stat. at L. 1460. Tonga. October 2, 1886; 25 Stat. at LL. 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 | responding document containing the names 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 [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 of the whole crew, was essential, and could collected together on shore for the purpose ❘tion to enforce the jurisdiction of that coun 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. try 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 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 hibition of the original ship's roll. or a cor- 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 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 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 restor[468]ations *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. În 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. 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 [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 chargé 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 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 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 au 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 'thorized by the law of the land." The case was not further pursued. 1 Moore, Extra- | *FLORIDA CENTRAL & PENINSULAR[471] dition, § 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 [470]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 exесиtive or judicial authorities of the United RAILROAD COMPANY, Plff. in Err., v. WILLIAM H. REYNOLDS, as Comptroller of the State of Florida, and John A. Pierce, as Sheriff of Leon County. (See S. C. Reporter's ed. 471-483.) Equal protection of the laws-assessment of railroad property for omitted taxes. Railroad companies are not denied the equal protection of the laws by Fla. Laws 1885, chap. 2558, requiring the comptroller to assess the taxes for 1879, 1880, and 1881 upon such railroad property as had escaped taxation for such years, without providing for the assessment of taxes for those years on other property not previously assessed therefor, general legislation having provided that railroad property should be assessed by the comptroller and real estate by the county treasurer. [No. 183.] States had no power to arrest, detain, and Argued November 5, 6, 1901. Decided Jan 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 sug gestion of the district attorney can have no effect, other than to call the attention of the court to the facts of the recor. 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. 183 U. S. IN uary 6, 1902. N ERROR to the Supreme Court of the State of Florida to review a decision which effected the dismissal of a bill to re strain the collection of taxes. Affirmed. See same case below, 28 So. 861. Statement by Mr. Justice Brewer: The Constitution of Florida of 1868, art. 16, § 24, as amended by art. 11 of the amendments of 1875, is as follows: "The property of all corporations, whether heretofore or hereafter incorporated, shall be subject to taxation, unless such property be held and used exclusively for religious, educational, or charitable purposes." Sec. 26, chap. 3413, of the Laws of Florida, 1883, reads: "If any assessor, when making his assessments, shall discover that any land in his county was omitted in the assessment roll of either or all of the three previous years, and was then liable to taxation, he shall, in addition to the assessment of such land for that year, assess the same separately for such year or years that may have been so omitted, at the just value thereof in such year, noting distinctly the year when such omission occurred; and such assessment shall have the same force and effect as it would have had if made in the year the same was omitted, and taxes shall be levied and collected thereon in like manner and together with the taxes of the year in which the NOTE. As to constitutional equality of privileges, immunities, and protection see Louisville Safety Vault & T. Co. v. Louisville & N. R. Co. (Ky.) 14 L. R. A. 579, and note. As to the validity of class legislation-see State v. Goodwill (W. Va.) 6 L. R. A. 621, and note, and State v. Loomis (Mo.) 21 L. R. A. 789, and note. 283 |
