and finally by a special treaty with Great Britain, ratified June 3, 1892. In short, it may be said that, with the exception of China, the Argentine Republic, and possibly a few others, there is not a maritime nation in the world with which we have not entered into a convention for the arrest and delivery over of deserting seamen. The multitude of these conventions is such as to indicate a pressing necessity that masters of vessels should have some recourse to local laws to prevent their being entirely stripped of their crews in foreign ports. A like provision for the arrest and delivery over of seamen deserting from domestic [431]vessels, adopted by the first Congress *in 1790 (1 Stat. at L. 131, 134, chap. 29), was sustained by this court in Robertson v. Baldwin, 165 U. S. 275, 41 L. ed. 715, 17 Sup. Ct. Rep. 326, and remained upon the statute books for over a hundred years, when it was finally repealed in 1898. 30 Stat. at L. 755, 764, chap. 28. ders of Napoleon and in violation of the The district attorney filed a suggestion to the effect that the vessel, whose name had been changed, belonged to the Emperor of the French, and while actually employed in his service was compelled, by stress of weather, to enter the port of Philadelphia for repairs: that if the vessel had ever be longed to the libellants, their title was devested according to the decrees and laws of France in such case provided. The district judge dismissed the libel upon the ground that a public armed vessel of а foreign sovereign in amity with our government is not subject to the ordinary judicial tribunals of our country, so far as regards the question of title, by which such sovereign holds the vessel. On appeal, this court, through Mr. Chief We are cited to no case holding that courts Justice Marshall, held that the decree of have the power, in the absence of treaty the district court should be affirmed; that stipulations, to order the arrest and return the "perfect equality and absolute indeof seamen deserting from foreign ships; and pendence of sovereigns, and this common init would appear there was no such power interest impelling them to mutual intercourse this country, inasmuch as § 5280, under which the commissioner is bound to proceed, limits his jurisdiction to applications by a consul or vice-consul of a foreign government "having a treaty with the United States" for that purpose. In Moore on Extradition, § 408, it is laid down as a general proposition that, in the absence of a treaty, the surrender of deserting seamen cannot be granted by the authorities of the United States; and an opinion of Attorney General Cushing (6 Ops. Atty. Gen. 148) is cited upon that point. There is also another to the same effect. 6 Ops. Atty. Gen. 209. It is believed that in all the instances which arose between the United States and Great Britain prior to the treaty of 1892 for the reclamation of deserting seamen, both powers have taken the position that in the absence of a treaty there can be no reclamation. Several instances of this kind are cited by Mr. Moore in his treatise. and an interchange of good offices with each other, have given rise to a class of cases in which every sovereign is understood to waive the exercise of a part of that complete exclusive territorial jurisdiction which has been stated to be the attribute of every nation." He divided these cases into three classes: 1. The exemption of the person of the sovereign from arrest or detention in a foreign country. 2. The immunity which all civilized nations allow to foreign ministers. 3. Where the sovereign allows the troops of a foreign prince to pass through his dominions. In respect to this last class he observed: "In such case, without any express declaration waiving jurisdiction over the army to which this right of passage has been granted, the sovereign who should attempt to exercise it would certainly be considered as violating his faith. By exercising it, the In the case of the United States v. purpose for which the free passage was Rauscher, 119 U. S. 407, 30 L. ed. 425, 7 granted would be defeated, and a portion Sup. Ct. Rep. 234, it was held that, apart of the military force of a foreign independfrom the provisions of treaties upon the sub-ent nation would be diverted from those naject, there was no well-defined obligation on tional objects and duties to which it was the part of one country to deliver up fugi applicable, and would be withdrawn from[433] tives from justice to another, "and though the control of the sovereign whose power and such delivery was often made, it was upon whose safety might greatly depend on rethe principle of comity, and within the dis- taining the exclusive command and disposicretion of the government whose action was tion of this force. The grant of a free invoked, and it has never been recognized passage, therefore, implies a waiver of all as among those obligations of one govern- jurisdiction_over the troops during their ment towards another which rest upon es- passage, and permits the foreign general to tablished principles of international law." The only case in our reports even indirectly considering such a case as one of international comity is that of The Exchange In this connection he held that there was v. McFaddon, 7 Cranch, 116, 3 L. ed. 287. a distinction between a military force which This was a libel for possession promoted by could only enter a foreign territory by perthe former owners of the Exchange, who al mission of the sovereign, and a public armed leged that she had been seized under the or-vessel, which upon principles of interna use that discipline, and to inflict those punishments, which the government of his army may require." tional comity is entitled to enter the ports of any foreign country with which her own country is at peace. He further observed: "If there be no prohibition, the ports of a friendly nation are considered as open to the public ships of all powers with whom it is at peace, and they are supposed to enter such ports, and to remain in them while allowed to remain under the protection of the government of the place." It was upon this ground that the court held the Exchange exempt from 'seizure. This case, however, only holds that the public armed vessels of a foreign nation may, upon principles of comity, enter our harbors with the presumed license of the government, and while there are exempt from the jurisdiction of the local courts; and, by parity of reasoning, that, if foreign troops are permitted to enter, or cross our territory, they are still subject to the control of their officers and exempt from local jurisdiction. attack upon a power with which we were at peace. In January, 1862, the Secretary of State gave permission to the British government to land a body of troops at Portland, and to transport them to Canada, the St. Lawrence being closed at that season of the year. The concession was the more significant from the fact that it occurred during our Civil War, when our relations with Great Britain were considerably strained, and the object was evidently to strengthen the British garrisons in Canada. In 1875 permission was granted to the Governor General of Canada to transport through the territory of the United States certain supplies for the use of the Canadian mounted police force. In 1876 the President permitted Mexico to land in Texas a small body of her troops, supposed to be intended to aid in the *de-[435] fense of Matamoras, with the proviso that the stay be not unnecessarily long, and that the Mexican government should be liable for any injury inflicted by these troops. By a reciprocity of courtesy, permission was given in 1881 by the Governor General of Canada for the passage of a company of Buffalo militia, armed and equipped, over the Canada Southern Railway, from Buffalo to Detroit. These and other instances are collected by Dr. Wharton in his Digest of International Law, § 13. Our attention is also called by counsel to the following instances: On the occasion of the Dewey parade, a regiment of Canadian troops was given permission to come into the United States and join in the procession. This permission was granted as in the present case by the Secretary of the Treasury. The case, however, is not authority for the proposition that, if the crews of such vessels, or the members of such military force, actually desert and scatter themselves through the country, their officers are, in the absence of treaty stipulation, authorized to call upon the local authorities for their reclamation. While we have no doubt that, under the case above cited, the foreign officer may exercise his accustomed authority for the maintenance of discipline, and perhaps arrest a deserter dum fervet opus, and to that extent this country waives its ju- At the Columbian celebration in 1893 risdiction over the foreign crew or com- marines from every foreign war vessel, exmand, yet if a member of that crew actu-cept the Spanish, were allowed to land and ally escapes from the custody of his officers, did land and parade in the public streets [434] he commits no crime against the local gov- of New York under the control of their ernment, and it is a grave question whether various commanders. the local courts can be called upon to enforce what is in reality the law of a foreign Sovereign. The principle of comity may imply the surrender of jurisdiction over a foreign force within our territory, but it does not necessarily imply the assumption by our courts of a new jurisdiction, invoked by a foreign power, for the arrest of persons who have committed no offense against our laws, and are perhaps seeking to become citizens of our country. Our attention has been called to no such case. But, however this may be, there can be no doubt that the In none of these cases, however, did a commissioner, in exercising the powers vest-question arise with respect to the immunity ed in him by Rev. Stat. § 5280, is limited to of foreign troops from the territorial juthe arrest of seamen belonging to a country risdiction, or the power of their officers over with whom we have a treaty upon that sub- them, or the right of the latter to call upon ject. the local officers for the arrest of deserters. Instances are by no means rare where While no act of Congress authorizes the Exforeign troops have been permitted to en-ecutive Department to permit the introducter or cross our territory, although in September, 1790, General Washington, on the advice of Mr. Adams, did refuse to permit British troops to march through the territory of the United States from Detroit to the Mississippi, apparently for the reason that the object of such movement was an attack on New Orleans and the Spanish possessions on the Mississippi. The government might well refuse the passage of foreign troops for the purpose of making an At the Buffalo Exposition, but recently closed, Mexican troops were allowed to go through the United States and be present at Buffalo, and remain there during the exposition. tion of foreign troops, the power to give such permission without legislative assent was probably assumed to exist from the authority of the President as commander-inchief of the military and naval forces of the United States. It may be doubted, however, whether such power could be extended to the apprehension of deserters in the absence of positive legislation to that effect. If the arrest of Alexandroff were wholly without authority of law, we should not feel it our duty to detain him and deliver him | between independent nations for the comup to the custody of Captain Behr, notwith- mon advancement of their interests and the [436]standing we might be of opinion that he had interests of civilization, and as their main unlawfully escaped from his custody. If object is, not only to avoid war and secure Captain Behr by the escape of Alexandroff a lasting and perpetual peace, but to prolost the right to call upon the local author- mote a friendly feeling between the people ities for his arrest and surrender, he ac- of the two countries, they should be interquired no new right in that particular by preted in that broad and liberal spirit which the fact that he was illegally arrested and is calculated to make for the existence of a is still in custody. His detention upon the perpetual amity, so far as it can be done ground of comity could only be justified by without the sacrifice of individual rights or the fact that his original arrest was legal, those principles of personal liberty which although if his arrest were authorized by lie at the foundation of our jurisprudence. law, the fact that such arrest was irregular It is said by Chancellor Kent in his Commight be condoned. mentaries, vol. 1, p. 174: "Treaties of every kind are to receive a fair and liberal interpretation according to the intention of the contracting parties, and to be kept with the most scrupulous good faith. Their meaning is to be ascertained by the same rules of construction and course of reasoning which we apply to the interpretation of private contracts." What, then, are the stipulations to which we must look for the solution of the question involved in this case? They are found in the 9th article of the treaty, which authorizes the arrest and surrender of "deserters from the ships of war and merchant vessels of their country." It is insisted, however, that this article is no proper foundation for the arrest of Alexandroff for three reasons: First, that the Variag was not a Russian ship of war; second, that Alexandroff was not a deserter from such ship; and, third, that his membership of such crew was not proved by the exhibition of registers of vessels, the rolls of the crew, or by other official documents. The case depends upon the answers to these questions. But whatever view might be taken of the question of delivering over foreign seamen in the absence of a treaty, we are of opinion that the treaty with Russia having contained a convention upon this subject, that convention must alone be looked to in determining the rigths of the Russian authorities to the reclamation of the relator. Where the signatory powers have themselves fixed the terms upon which deserting seamen shall be surrendered, we have no right to enlarge those powers upon the principles of comity so as to embrace cases not contemplated by the treaty. Upon general principles applicable to the construction of written instruments, the enumeration of certain powers with respect to a particular subject-matter is a negation of all other analogous powers with respect to the same subject-matter. Ex parte McCardle, 7 Wall. 506, 19 L. ed. 264; Endlich, Interpretation of Statutes, §§ 397, 400. As observed by Lord Denman in Aspdin v. Austin, 5 Q. B. 671, 684, “where parties have entered into written engagements with express stipulations, it is manifestly not desirable to extend them by any implications; the pre- 1. At the time Alexandroff arrived in sumption is that, having expressed some, Philadelphia the Variag was still upon the they have expressed all the conditions by stocks. Whatever be the proper construcwhich they intend to be bound under that tion of the word under the treaty, she was [438] instrument." The rule is curtly stated in not then a ship in the ordinary sense of the the familiar legal maxim, Expressio unius term, but shortly thereafter and long be est exclusio alterius. In several recent cases fore Alexandroff deserted, she was launched, in this court we have held that, where a and thereby became a ship in its legal sense. statute gives a certain remedy for usurious A ship is born when she is launched, and interest paid, that remedy is exclusive, al- lives so long as her identity is preserved. though in the absence of such a remedy the Prior to her launching she is a mere condefense might be made by way of set-off or geries of wood and iron-an ordinary piece credit upon the original demand. Barnet of personal property-as distinctly a land v. Muncie Nat. Bank, 98 U. S. 555, 25 L. ed. structure as a house, and subject only to 212; Driesbach v. Second Nat. Bank, 104 U. mechanics' liens created by state law and S. 52, 26 L. ed. 658; Stephens v. Mononga-enforceable in the state courts. In the baphela Nat. Bank, 111 U. S. 197, 28 L. ed. 399, 4 Sup. Ct. Rep. 336; Haseltine v. Central Nat. Bank, 183 U. S. 132, ante, 118, 22 Sup. [437] Ct. Rep. 50. *See also King v. Sedgley, 2 Barn. & Ad. 65; Hare v. Horton, 5 Barn. & Ad. 715; Stafford v. Ingersol, 3 Hill, 38. We think, then, that the rights of the parties must be determined by the treaty, but that this particular convention being operative upon both powers, and intended for their mutual protection, should be interpreted in a spirit of uberrima fides, and in a manner to carry out its manifest purpose. Taylor, International Law, § 383. As treaties are solemn engagements entered into tism of launching she receives her name, 212; United States v. The Little Charles, 1 Brock, 347, 354, Fed. Cas. No. 15,612; The John G. Stevens, 170 U. S. 123, 125, 126, 42 L. ed. 973, 974, 18 Sup. Ct. Rep. 544; Homer Ramsdell Transp. Co. v. La Compagnie Générale Transatlantique, 182 U. S. 406, 45 L. ed. 1155, 21 Sup. Ct. Rep. 831. She is capable, too, of committing a tort, and is responsible in damages therefor. She may also become a quasi bankrupt; may be sold for the payment of her debts, and thereby receive a complete discharge from all prior liens, with liberty to begin a new life, contract further obligations, and perhaps be subjected to a second sale. We have had frequent occasion to notice the distinction between a vessel before and after she is launched. In People's Ferry Co. v. Beers, 20 How. 393, 15 L. ed. 961, it was held that the admiralty jurisdiction did not extend to cases where a lien was claimed for work done and materials used in the construction of a vessel; while the cases holding that for repairs or alterations, supplies or materials, furnished after she is launched, suit may be brought in a court of admiralty, are too numerous for citation. continuance of the contract, inspected by a board of inspection appointed by the Russian Ministry of Marine, who should have full liberty to enter the premises of the contractors for such purpose; and that speed trials should be made by the contractors in the presence of such board of inspection. The 10th article of the contract reads as follows: "Art. 10. The contractors agree that the vessel to be built, as aforesaid, whether finished or unfinished, and all steel, iron, timber, and other materials as may be required by the contractors, and be intended for the construction of the said ship, and *which [440] may be brought upon the premises of the contractors, shall immediately thereupon become, and be, the exclusive property of the Russian Ministry of Marine. The flag of the imperial Russian government shall be hoisted on the said ship whenever desired by the board of inspection, as evidence that the same is said government's exclusive property, and the Russian Ministry of Marine may at any time appoint an officer or officers to take actual possession of the said ship or materials, whether finished or unfinished, subject to the lien of the contractors for any portion of the value that may be unpaid." So sharply is the line drawn between a vessel upon the stocks and a vessel in the water, that the former can never be made Such being her status with respect to her liable in admiralty, either in rem against title and employment, can it be doubted that, herself or in personam against her owners, if the contractors had seen fit to institute upon contracts or for torts, while if in tak- proceedings under the mechanic's lien law of [439]ing the water during the process of launch-the state for labor and materials furnished ing, she escapes from the control of those about her, shoots across the stream and injures another vessel, she is liable to a suit in rem for damages. The Blenheim, 2 W. Rob. 421; The Vianna, Swabey, 405; The Andalusian, L. R. 2 Prob. Div. 231; The Glengarry, L. R. 2 Prob. Div. 235; The George Roper, L. R. 8 Prob. Div. 119; Baker v. Power, 14 Fed. 483. Inasmuch as the Variag had been launched and was lying in the stream at the time of Alexandroff's desertion, we think she was a ship within the meaning of the treaty. in her construction, or if a materialman had filed a libel in admiralty against her for coal furnished in testing her engines, or if upon her trial trip she had negligently come into collision with another vessel whose owner had instituted a suit against her, the Emperor of Russia might have claimed for her an immunity from local jurisdiction upon the ground that she was the property of a foreign sovereign? In making this defense it would necessarily appear that she was a public vessel; in other words, a ship of war, and upon that ground immune from suit or It requires no argument to show that if prosecution in the local courts. In the case she were a ship of any description, she was of The Constitution, L. R. 4 Prob. Div. 39, a ship of war as distinguished from a mer- an historical and venerable frigate of the chant vessel. Article IX. of the treaty em- United States, while returning home from braces deserters from both classes of vessels. the Paris Exposition with a cargo of AmeriShe was clearly not a merchant vessel, and can exhibits belonging to private parties, as clearly intended to be and was a ship of was stranded on the south coast of England war, notwithstanding she had not received and received salvage services from an Engher armament. The contract with the lish tug. It was held by the English court • Cramps under which she was built was en- of admiralty that no warrant for her arrest tered into by the Russian Ministry of Ma- | could issue, either in respect of ship or rine, and provided for the construction by cargo. In The Parlement Belge, L. R. 4 them for the Russian imperial government Prob. Div. 129, a vessel belonging to the of "a protected cruiser, built, equipped, King of the Belgians, manned by officers and armed and fitted," etc. The appearance of inen commissioned and paid by him, and a modern ship of war, too, is so wholly dis-regularly employed for the purposes of carrytinct from that of a merchant vessel that ing mails, passengers, and cargo, was held there could be no possibility of mistaking one for the other. by the British court of admiralty not to be entitled to the privileges of a man-of-war We are also of opinion that she was a as to extraterritoriality, and that she was Russian ship of war within the meaning of liable to proceedings in rem at the suit of the treaty. The contract under which she the owner of a vessel injured by her in colwas built, not only provided that she was to lision. The decision, however, was reversed be built for the imperial Russian govern- by the court of appeals, upon the ground[441] ment, but should be constantly, during the 'that the exercise of such jurisdiction was incompatible with the absolute independence It is true there was a provision that the Variag might be rejected either for deficient speed or for excessive draft, and that she should be during her construction at the risk of the contractors, until she had been actually accepted by the imperial Russian government, or they had taken actual possession of her. This, however, did not prevent the property passing to the Russian government as stipulated by article X. of the contract, though with a provision for an ultimate rescission. True, the Russian flag had never been hoisted upon the vessel, but that was immaterial, as the government had not finally accepted or taken possession of her. itself would not be sufficient to authorize his arrest under article IX. of the treaty? To be a deserter from a particular ship he must have been a member of the crew of such ship, and bound to remain in its service until discharged. It is earnestly insisted that, although he had been detailed to serve thereafter as a member of the crew of the Variag, her crew had never been organized as such, that the detail was merely preliminary to such organization, and that Alexandroff had never set foot upon the vessel. This argument necessarily presupposes that seamen do not become a "crew" until they have actually gone on board the vessel, and entered upon the performance of their duties. We cannot acquiesce in this position. The more reasonable view is that seamen become obligated to merchant vessels from the time they sign the shipping articles, and from that time they may incur the penalties of desertion. title 3, article 3, of this ordinance, "if a sea- Code, art. 402, "the master, or his represen- Mr. Hall, in his treatise upon Internation- So early as the marine ordinances of Louis al Law, discussing foreign ships as nonter-XIV.-the foundation of all maritime Codes ritorial property of a state (§ 44), says that the service of the seaman was treated as the commission under which a commander beginning from the moment when the conacts is conclusive of the public character | tract for such service was entered into. By of a vessel, although such character is usually evidenced by the flag and pendant which she carries, and, if necessary, by firing a gun. “When in the absence of, or notwithstanding, these proofs, any doubt is entertained as to the legitimateness of her claim, the statement of the commander on his word of honor that the vessel is public is often accepted, but the admission of such statements as proof is a matter of courtesy," and "though attestation by a government that a ship belongs to it is final, it does not fol-pelled to perform the same." By the Dutch low that denial of public character is equally final; assumption and repudiation of responsibility stand upon a different footing." It is true he says that 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 not being capable of separate use for these purposes, and consequently are not exempted from the local jurisdiction. But it is pertinent to notice here that he is speaking of immunities of public vessels [442] from local jurisdiction, and not of the prop erty of a foreign government in such vessels. See also Taylor, International Law, §§ 253, 254, 261. There can be no doubt that the Variag, in the condition in which she was at the time Alexandroff deserted, was a subject of local jurisdiction, and that if any crime had been committed on board of her, such crime would have been cognizable in the local courts, although it would have been other wise had the Russian government taken possession, put a crew on board of her, and commissioned her for active service. This, how ever, does not touch the question whether she was not a ship of war within the letter and spirit of the treaty of 1832. 2. Was Alexandroff a deserter from a Russian ship of war within the meaning of the treaty, or was he merely a deserter from the Russian naval service, a fact which of The rule is the same in England. By § 243 of the merchants' shipping act of 1854 (17 & 18 Vict. chap. 104), "Whenever any seaman who has been lawfully engaged, or any apprentice to the sea service, commits any of the following offenses, he shall be liable to be punished summarily, as follows (that is to say): 2. For neglecting or refusing, without reasonable cause, to join his ship, or to proceed to sea in his ship, or for absence without leave at any time within twenty-four hours of the ship's sailing from any port, either at the commencement or during the progress of any voyage, he shall be liable to imprisonment," etc. And by § 246, "Whenever, either at the commencement or during the progress of any voyage, any seaman or apprentice neglects or refuses to join, or deserts from or refuses to proceed to sea in any ship in which he is duly engaged to serve." the master may call upon the local police officers or constables to apprehend him. These provisions have been substantially carried into the new merchants' shipping act. 57 & 58 Vict. chap. 60, § 221. Congress, however, has so often spoken |