The opinion
BRADFORD, District Judge
(dissenting). I dissent from the judgment of the court in this case on the ground that, in mv opinion, by the principles of international comity as recognized in i i country and declared by the Supreme Court Captain Behr has a right to exercise discipline over the Russian naval force which came to this country in his charge, including the power to arrest and have custody of Leo Alexandroff, the relator, as a deserter. This ground was not discussed or even considered by the learned judge who decided the case in the court below; nor am I aware that it was presented to him in argument. He said:
“The single question for decision is whether Article IX of the treaty with Russia, concluded in December, 1832, under which the arrest was made, justifies the prisoner’s detention.”
If the case had involved only the point on which it was decided below there could be little doubt as to the correctness of the decision. But in this court it has been presented in a new and very different aspect. The record shows that the relator and the other Russian sailors under command of Captain Behr came to this country as members of tlie Russian navy, under orders to form part of ihe crew of the cruiser Variag, a war vessel, then in course of construction for the Russian government at the ship yard of The William Cramp & Sons Ship & Engine Building Company in Philadelphia under a contract between that company and the Russian Ministry of Marine. The men composing this detail were subjects of Russia and in the service and pay of Russia, formed part of the military force of that empire, came to this country in a body under military discipline, and in a body entered on our soil, not as private individuals severally bound on business or pleasure, but for the specific and strictly public purpose of manning a cruiser about to be turned over to the Russian government. The broad principles which should he determinative of this case are stated with admirable clearness and force in The Exchange v. McPaddon, 7 Cranch, 116 , 3 L. Ed. 287 . Chief Justice Marshall delivering the opinion of the court said:
“Tlie world being- composed of distinct sovereignties, possessing equal rights and equal independence, whose mutual benefit is promoted by intercourse with each other, and by an interchange of those good offices which humanity dictates and its wants require, all sovereigns have consented to a relaxation in practice, in cases under certain peculiar circumstances, of that absolute and complete jurisdiction within their respective territories which sovereignty confers. * * * A third case in which a sovereign is understood to cede a portion of his territorial jurisdiction is, where he allows the troops of a foreign prince to pass through his dominions. In such case, without any express declaration waiving jurisdiction over the army to which this right of passage has been granted, tlie sovereign who should attempt to exercise it would certainly be considered as violating his faith. By exercising *448 it, the purpose for which the free passage was granted would be defeated, and a portion of the military force of a foreign independent nation would be diverted from those national objects and duties to which it was applicable, and would be withdrawn from the control of the sovereign whose power and whose safety might greatly depend on retaining the exclusive command and disposition of this force. The grant of a free passage, therefore, 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. * * * When piivate individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other, or when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and 'dangerous to society, and would subject the laws to continual infraction, and the government' to degradation, if such individuals or merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country.”
In Coleman v. Tennessee, 97 U. S. 509, 515 , 24 L. Ed. 1118 , the court, referring to the case of The Exchange as authority, said:
“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.”
The court quoted with approval the following passage from the opinion of Chief Justice Marshall:
“The grant of a free passage, therefore, 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.”
So in Dow v. Johnson, 100 U. S. 158, 165 , 25 L. Ed. 682 , the same doctrine is recognized. Wheaton in his Elements of International Law, pt. 2, c. 2, § 9, says:
“A foreign army or fleet, marching through, sailing over, or stationed in the territory of another State, with whom the foreign sovereign to whom they belong is in amity, are also, in like manner, exempt from the civil and criminal jurisdiction of the place.”
While the terms “troops” and “army” are used in the above citations, I have no reason to doubt that the rule or law of comity as there enunciated is equally applicable to such a military body as the naval detail in question. It is not disputed that comity is operative in the case of an organized regiment of a friendly foreign power while on our soil by permission of the Executive of the United States, and that proper discipline and obedience may be enforced by those in command without reference to our laws, nor is it disputed that comity is applicable to a marine force as well as to a land force. But the position is taken by the learned presiding judge in his opinion in this case that the rule of comity respects organized bodies only; that Captain Behr and the men under him were not an integral component of the Russian navy, not having become part of the crew of the Variag; that the fact that the men were by Russian law subject to the Captain’s control did not of itself make them, when conjointly considered, a constituent unit of the Russian navy; that the question whether Captain Behr’s detail should be considered representative of the Russian navy cannot depend merely upon the number composing it; ■that the true criterion rests upon the distinction be *449 tween the concrete parts into which a navy is usually divided and its individual members, the former standing for the navy, while the latter do not; and that Captain Behr and his men were neither marching through this country nor, in the ordinary sense of the word, stationed here. I am unable to assent to the correctness of this line of reasoning or to the conclusion deduced from it. It is, in my judgment, based on too technical and literal an interpretation of the language of the authorities, and falls far short of satisfying the broad policy underlying that language. The men composing the Bussian detail in charge of Captain Behr certainly are not included in the category of “private individuals of one nation” who “spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other.” While not completely organized as a crew, they nevertheless possessed organization. As before stated, they were in the naval service of Bussia and came to our soil in a body under military discipline for the sole purpose of manning a Russian war vessel. They were a portion of the military' force of a foreign independent nation at peace with and friendly to the United States. It is wholly unimportant, in my judgment, that they had not actually gone aboard of the Yariag as a fully organized crew, or whether they were or were not fully armed and equipped. Bor is it of any moment that they may not technically have been “stationed” on our soil, or were not technically “marching” over it. International comity is not to be frittered away by such refinements. They were here in the employ of their sovereign for strictly national objects and duties. Their organization and the character of their employment clearly brought them within the principles and rules of comity as observed among modern civilized nations, if they were on our soil by the permission or consent of the Executive. Captain Behr and his men arrived in this country October 14, 1899. Ten days before such arrival the acting secretary of the Treasury wrote a letter of which the following is a copy:
“Treasury Department,
No. 19,805. Office of the Secretary.
Washington D. O.
October 4, 1899.
Sir:—
Acknowledging the receipt of your letter of the 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.
Respectfully yours,
O. L. Spaulding,
Acting Secretary,
T. U. S.”
It is evident on the face of the letter that it was intended for and presumably directed to some representative of the Russian government. That he was the Russian ambassador can hardly be questioned. It appears from the record that the counsel for the respond* *450 ents below offered the above copy in evidence, stating that the original was 'from the acting Secretary of the Treasury, permitting the landing of the detail, and was, as he understood in the possession of the Russian ambassador at Washington. The offer was objected to by the relator’s counsel, but the copy was admitted; whereupon the objection was withdrawn. During the argument of the appeal it was stated positively by the counsel for the appellants that the original was addressed to the Russian ambassador at Washington. This statement in open court, while not expressly acquiesced in by the counsel for the appellee, was not denied, and the argument proceeded, and the case was heard on the assumption that the Russian ambassador was the recipient of the letter. Under the circumstances this court, in my opinion, must treat the above copy as the copy of a letter addressed to and received by the Russian ambassador. Here, then, is a written communication made by the secretary of the Treasury, one of the branches of the executive department of the government, diredtly to. the immediate representative of Russian sovereignty on our soil. This letter on its face shows several important facts, namely, (1) that it was written in reply to a letter of the Russian ambassador of September 24, 1899; (2) that the instructions issued to the commissioner of immigration to admit the detail without examination, and to the collector of customs not to collect head tax, were “in compliance with request contained therein,” that is to say, a request contained in the letter of the Russian ambassador; (3) that the Russian ambassador had stated that the detail of one officer and fifty-three regular sailors had 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” ; and (4) that, whatever may have been the reason for not insisting upon examination or collection of head tax, the detail was to be admitted into the United States “in compliance with request” of the Russian ambassador. Assuming for the present that the action of the secretary of the Treasury in thus dealing with the Russian ambassador must be taken as the act of the Executive the Russian government had just cause to expect that its naval detail would be accorded the privileges and immunities incident to the observance of the comity due between independent but friendly nations, without which it might well be questioned whether that government would have allowed the entry of the detail upon, our soil at all. There was a request by Russia through her ambassador, and permission and consent on the part of the executive department of the United States, that the detail should be admitted to our territory for the specific purpose of manning a Russian war vessel. I wholly fail to perceive any force in the suggestion that while the letter of the secretary of the Treasury contemplated a dispensation of the usual examination and of the collection of head tax, it did not contain a permission that the detail should be admitted into the United States. Instructions to admit with or without examination or collection of head tax are still instructions to admit. The contention that consent was not given for the admission of the naval detail qua military force is, in my opinion, equally untenable. The permission contained in the *451 letter was, not to admit “private individuals of one nation” to “spread themselves through another as business or caprice may direct,” but to admit “the detail of one officer and fifty-three regular sailors” who had been “detailed to this conn try for the purpose of partially manning the cruiser now under construction for the Russian Government at Cramp's Shipyard in Philadelphia, Pennsylvania.” Here is an express consent to the admission upon our soil of á military force qua military force, and in no other character or capacity. It was a naval detail under the command of a naval officer, and the sole purpose of its admission appears on the face of the letter to have been purely military, namely, the manning of a Russian war vessel. The contention under discussion seems to involve the assumption that as a prerequisite to the operation of comity the permission granted to a military force of a friendly foreign power to enter or remain upon our soil qua military force, must he coupled with an enumeration of the privileges and immunities to be accorded to such force while here. But such an assumption‘is unfounded. While such a specification or enumeration may properly be the subject of convention between sovereign powers, ii is well settled that, in the absence of such convention, the admission upon our soil of a military force qua military force carries with it by implication the same right on the part of the commander to enforce discipline and compel obedience as exists in the country to which it belongs, in so far as its exercise is not prejudicial to us. And this right continues until terminated by an act of sovereignty on the part of the United States. In the case of The Exchange, supra, Chief Justice Marshall, speaking of the passage through a sovereign’s dominions of the troops of a foreign prince by the allowance or permission of the former, said:
“In such case, without any express declaration waiving jurisdiction over the army to which this rigid oí passage has been granted, the sovereign who should attempt to exercise it would certainly be considered as violating his faitli. * * * The grant of a free passage, therefore, 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.”
The consent given by the executive department to the entry of the Russian detail for the purpose of manning the Variag by necessary implication involved consent that the detail should in that character remain on our soil, and have a “right of passage” over our soil, for that purpose. Good faith between friendly nations as well as the obvious sense of the communication repudiates any other interpretation. The idea that the consent given was restricted to the mere admission of the detail upon onr soil, and that it was intended that immediately thereafter that body should lose its cohesive power and discipline as part of the military force of Russia, is inadmissible. If the consent given by the Treasury department is to be taken as the act of the Executive, international comity requires the recognition of a right on the part: of Captain Behr as commander of the detail to exercise military discipline, which, of course, includes the usual and indispensable power, possessed by commanders of military forces, to arrest and have custody of a deserter. The Executive *452 speaks and'acts through the heads of the several departments in relation to subjects pertaining to their respective duties, and their action with respect to such subjects is presumed to have been taken with the- approval and by direction of the Executive. Wilcox v. Jackson, 13 Pet. 498, 513 , 10 L. Ed. 264 ; U. S. v. Eliason, 16 Pet. 291, 302 , 10 L. Ed. 968 ; The Confiscation Cases, 20 Wall. 92, 109 , 22 L. Ed. 320 ; U. S. v. Farden, 99 U. S. 10, 19 , 25 L. Ed. 267 ; Wolsey v. Chapman, 101 U. S. 755, 769 , 25 L. Ed. 915 ; Runkle v. U. S., 122 U. S. 543, 557 , 7 Sup. Ct. 1141, 30 L. Ed. 1167 . The State department is the executive branch of the government which is charged with our foreign relations, and the secretary of State as the head of that department is the usual channel of communication with foreign powers. But I am. not aware that either he or that department is the only channel through which such communication can be made. Certainly the Executive has power to communicate with-a foreign ambassador through the Treasury department touching matters in which the foreign sovereign is interested which are within the scope of -the functions of that department. And if the secretary of the Treasury deal with a foreign ambassador touching such matters, it must be presumed, in the absence of evidence to the contrary, that such dealing is had by direction and with the approval of the Executive. Especially is this true where without such authorization, general or specific, the action of that department would involve a breach of law. It is unreasonable that the exercise of comity should be made to depend in a case like this upon such formalities as would naturally and properly attend the granting of permission by the government of the United States to a fully organized and equipped foreign army to traverse our territory. The law regards substance rather than form. The comity which should be observed between the United States and Russia as friendly nations at peace with each other should not be brushed aside on account of the absence of formalities, whieh in this case would have been unessential and uncalled for, if not out of place. Russia contracted with an American company for the building on American soil of a war vessel for the Russian government, and sent Captain Behr and his men to form-part of her crew. At the request of the Russian ambassador the detail , was admitted without examination or payment of head tax. Both of these matters were properly within the cognizance of the Treasury department, and the action of the secretary of the Treasury in so admitting the detail should be taken as the act of the Executive. But if it be assumed that the secretary of the Treasury was without authority to admit the Russian detail to our soil as a military force, and further, that the letter of October 4, 1899, was not addressed to or received by the Russian ambassador, how would the case stand? I cannot perceive any difference in principle, so far as the obligation to observe comity toward a friendly foreign nation is concerned, between a case where a portion of its military force has entered the United States with the permission of the Executive, and a case where a portion of the military force of such foreign nation, having entered the United States without the permission of the Executive, subsequently remains on our soil with such *453 permission. In either case the same line of reasoning is applicable.:! Chief Justice Marshall, in The Exchange, supra, said
“We have seen that a license to pass through a territory implies inxmuni-' ties not expressed, and it is material to inquire why the license itself ihay not be presumed? It is obvious that the passage of an army through a for.eign territory will probably be at all times inconvenient and injurious, .and. would often be Imminently dangerolis to the sovereign through whose‘.dominion it passed. Such a practice would break down some of the most decisive distinctions between peace and war, and would reduce a nation to the necessity of resisting by war. an act not absolutely hostile in its character,, or of exposing itself to the stratagems and frauds of a power whoso integrity might be doubted, and who might enter the country under deceitful pretexts. It is for reasons like these that the general license to foreigners to enter the dominions of a friendly power is never understood to extend to a military, force; and an army marching into the dominions of another sovereign, may. justly be considered as committing an act of hostility; and, if not opposed by, force, acquires no privilege by its irregular and improper conduct. It may, however, well be questioned whether any other than the sovereign power of, the State be capable of deciding that such military commander is without a.' license.”
It may seriously be doubted whether a detail of the Bussian navy-consisting of an officer and fifty-three subordinates, peaceably entering this country for the purpose of manning a Russian war ves-: sel constructed on our soil by an American company under a con-' tract with the Russian government, can justly be considered on tbesame footing as “an army marching into the dominions of another sovereign,” in the sense in which those words were employed in the.' above quoted clause. If, however, it be conceded that such detail, should be so considered, there is no evidence whatsoever that the' Executive, or any other branch of government of the United States,; has decided that such detail entered this country or has remained, here without proper license or permission. Wholly aside from the’ correspondence with the Russian ambassador, tbe record shows the military character of the detail and the purpose for which it cáme. to and remained on our soil, and the United States has not in any', manner questioned the authority and right of that detail to com.' tinue here in that character for the accomplishment of the purpose for which it came. On the contrary the government has clearly recognized such right and authority. By leave of this court the, United States attorney for the eastern district of Pennsylvania at the hearr: ing filed the following suggestion: , ,.
“The Keeper of the Philadelphia County Prison and Captain Vladimir Behr,Master of the Bussian Cruiser Variag,
Appellants;
The United States, of America ex rel. Leo Alexandroff, ' ' '"j
Appellee.;
United States Circuit Court of Appeals, Third ,Circuit, September Term, 1900. - , . ’
And now, to wit, this First day of October, A. D. 190Ó, comes JamqsB’ Holland, Esquire, United States Attorney for the Eastern District of Penm sylvania, at the instance of the Executive Department of the Government óf the United States, and files of record a suggestion as follows: •
Inasmuch as it appears "by the record in the above entitled cause, that Leo Alexandroff, the relator, is a subject and citizen of ,the Empire of Russia and *454 enrolled in the naval service of his country as an assistant physician; that he came to the United States, together with fifty-two other men, under the charge of an officer of the Russian Imperial Marine, detailed for the purpose of manning the Cruiser Variag, a vessel under construction for the Russian Government by the William Cramp Ship and Engine Building- Company of Philadelphia; that prior to the arrival of the said officer and men and in pursuance of correspondence with the Russian Ambassador, instructions were issued by the Secretary of the Treasury at Washington to the Commissioner of Immigration at New York, admitting the said officer and his subordinates for the purpose of partially manning the Cruiser, and inasmuch as the said Leo Alexandroff remained in the Rvissian Naval Service after his arrival in the United States until April 20th, 1900, when he deserted, lived a week in Philadelphia and then went to New York, where he was apprehended by Captain Vladimir Behr, Master of the Variag-, brought to Philadelphia and confined in the County Prison for safe keeping, and inasmuch as his period of enlistment in the Russian Imperial service was for six years from 1898, and, in pursuance of said enlistment, he left Russia for America, knowing he was to become one of the crew of the newly constructed cruiser and for that purpose alone and upon his arrival here and until he deserted, lived with the other members of his company, was supported by the Russian Government, and received wages for his services as a member of her crew, and inasmuch as it further appears by the record in the above entitled cause, that the said cruiser Variag was built under written contract between the Russian Government and the Cramp company, which provided among other things, as reference to the said record will more fully and at large appear, that the said vessel and all materials entering into her or intended for her construction should become and be the exclusive property of the Russian Ministry of Marine, and inasmuch, further, as there exists ■ between the United States of America and his Majesty, the Emperor of Russia, a state of peace and amity, and inasmuch as it does not appear but that the said officer having in charge the relator and the other sailors he brought to this country has conformed in all things to the law of nations and the laws of the United States and his authority over and custody and control of the said relator should not be interfered with directly or indirectly by the Government of the United States or by any of the courts created in pursuance thereof, it is
Respectfully Suggested
To the Honorable, the' Judges of the Circuit Court of Appeals, for the Third Circuit, that Leo Alexandroff, the relator, should be remanded to the custody of the keeper of the County Prison at Philadelphia, to await the orders of Captain Vladimir Behr, the Master of said Cruiser Variag.
James B. Holland, United States Attorney.”
This suggestion, made by executive authority, while informal in some respects, not only is a direct recognition and ratification by the Executive of the action of the secretary of the Treasury in admitting Captain Behr and his command to our soil, but discloses in an unmistakable manner that the attitude of the government toward that detail is and has been one of international comity. It is not suscéptible of any other construction. Further than this, it is a request by the Executive, addressed to this court, that the relator, who is now within its control, be remanded to the custody of the beeper of the prison to await the orders of Captain Behr, on the ground that, in view of the existence of a state of peace and amity between the United States and Russia, Captain Behr’s “authority over and control of the said relator should not be interfered with directly or indirectly by the government of the United States or by any of the courts.” I do not deem it of any moment that the suggestion refers to facts as appearing by the record instead of in *455 dependent.lv averring such facts. This at most could constitute only a formal defect. If the record discloses facts sufficient to warrant the observance by the Executive of comity toward Russia with respect to Captain Behr and his command it "is all that was necessary. Facts appearing by the record are quite as potent as facts independently asserted in a suggestion, if reference be made to the record as disclosing them. That the facts referred to in the suggestion and which appear by the record are sufficient I have no reason to doubt. The attitude of the executive department toward the Russian detail must he regarded as the result of an executive decision, political in its character, which should he respected by all courts. To hold that Captain Behr has no right to the custody of the relator asa deserter from the military force under his command is, in my judgment, not only to ignore the obligations of international comity, but to thwart the executive will as declared to this court in a matter properly of executive determination. Captain Behr having, as matter of military discipline, the right summarily to arrest and confine the relator as a deserter, misconceived his remedy, erroneously supposing that the facts brought the case within the provisions of Article IX of the treaty of December, 1832, between the United States and Russia. But, although the commitment of the relator to prison in the proceedings taken was not justified by the facts, the court below was not, nor is this court, obliged to discharge him. By virtue of section 761 of the revised statutes the court has authority to dispose of him “as law and justice require.”
In Nishimura Ekiu v. U. S., 142 S. 651, 662, 12 Sup. Ct. 336, 35 L. Ed. 1146 , Mr. Justice Gray in delivering the opinion of the court said:
“A writ of lialicas corpus is not like an action to recover damages for an unlawful arrest or commitment, hut its object is to ascertain whether the prisoner can lawfully lie detained in custody; and if sufficient ground for his detention by the government is shown, he is not to bo discharged for defects in the original arrest or Commitment.”
The intent of section 761 is that the party seeking a discharge through habeas corpus proceedings should he disposed of as law and justice at the time of such disposition shall require. lasigi v. Van de Carr, 166 U. S. 391 , 17 Sup. Ct. 595, 41 L. Ed. 1045 . 1 cannot assent to the proposition advanced in the opinion of the learned presiding judge that the question here presented relates to ihe light of an officer of a foreign navy to require the assistance of the courts of this country for the recapture of a deserter. Captain Behr is not the actor in this case. On the contrary the relator has proceeded against Captain Behr and the keeper of the county prison. The former was committed by a United Btates Commissioner to the custody of the keeper of the prison, to be held subject to the order of the Russian vice-consul at Philadelphia or of Captain Behr, master of the Variag. The relator in his petition for a writ, of habeas corpus prayed that the writ might be directed to the keeper of the prison and to Captain Behr, and the writ was so directed. Although the commitment was illegal, the relator was in fact held by the keeper of the prison subject to the order of Captain Bein', and it was *456 In' the power of the latter at any time before the filing of the petition for the writ of habeas corpus to take bodily possession of the relator. While the keeper of the prison may not legally have been the agent of Captain Behr, yet his possession of the relator was potentially a possession by Captain Behr, and the writ of habeas corpus had for its object the termination of the actual control possessed by Captain Behr over the relator. Having reached the conclusion that Captain Behr, by the law of comity, has from the time of the relator’s desertion been, and now is justly entitled to the possession of the relator’s person, I am of the opinion that the judgment of the court below should be reversed, with directions to remand the relator to the custody of the keeper of the prison, to be by him delivered to Captain Behr or, on his order, to the Russian vice-consul at Philadelphia.