# Tucker v. Alexandroff

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## Dissenting Opinion

    Gray
United States Supreme Court
183 U.S. 424
Tucker v. Alexandroff
Argued: November 15, 18, 1901. --- Decided: January 6, 1902
This was a writ of habeas corpus issued upon the petition of Alexandroff to inquire into the cause of his detention by Robert C. Motherwell, keeper of the Philadelphia County Prison, and Captain Vladimir Behr, master of the Russian cruiser Variag.
The petition set forth that the petitioner was illegally detained upon a commissioner's warrant, issued upon the affidavit of Captain Behr, to the effect that he was a duly engaged seaman of the Russian cruiser Variag whose term of service had not expired, and that he had, on or before April 25, 1900, deserted from said vessel without any intention of returning thereto. Petitioner further averred that on May 24, 1900, he had declared his intention before the proper authorities to become a citizen of the United States, and to renounce his allegiance to the Emperor of Russia, of whom he was then a subject; that he had never deserted the Variag, and had 'never set his foot on that vessel as a seaman thereof.'
In return to the writ the superintendent of the county prison produced the body of Alexandroff, with a copy of the commitment by a United States commissioner, stating that he had been 'charged' on oath with desertion from the Variag, and 'apprehended' upon a warrant issued by the commissioner at the request of the vice-consul, in accordance with the terms of a treaty between the United States and Russia. There was no statement that an examination had been had before the commissioner, and the warrant did not commit him for examination, but 'subject to the order of the Russian vice-consul at Philadelphia or of the master of the cruiser Variag, or until he shall be discharged by the due course of law.' The commitment is reproduced in full in the margin.
Upon a hearing upon the writ, the return thereto and the evidence, the district court was of opinion, first, that the Variag was not, at the time the petitioner left the service, a Russian ship of war, but simply an unfinished vessel intended for a Russian cruiser; second, that petitioner had not become a member of her crew; that the vessel had no crew in the sense intended by the treaty, inasmuch as the men assigned to that duty had not yet begun that service and might never be called upon to perform it; third, that no such documentary evidence of petitioner's enlistment as a member of the crew as was required by the treaty had been offered.
It was accordingly ordered that the prisoner be discharged from custody. 103 Fed. 198.
An appeal was taken from this order to the circuit court of appeals, in which court the district attorney entered his appearance and filed a suggestion that, under the facts of the case, the relator should be remanded to the county prison to await the order of Captain Behr, the master of the Variag.
Upon a hearing in the court of appeals, the order of the district court was affirmed. 48 C. C. A. 97, 107 Fed. 437. Whereupon William R. Tucker, vice-consul of Russia at Philadelphia, applied for and was granted a writ of certiorari from this court.
Messrs. John F. Lewis, Paul Fuller, and Frederic Coudert, Jr., for petitioner.
Messrs. Isaac Hassler and Bernard Harris (by special leave) for respondent.
Mr. Justice Brown delivered the opinion of the court:

## Notes

* ↑ Copy of Commitment.
United States of America, } } sct.
Eastern District of Pennsylvania, }
The President of the United States of America to the marshal of said district and to the keeper of the criminal apartment of the Philadelphia county prison at Moyamensing:
These are to command you, the said marshal, forthwith to deliver into the custody of the said keeper the body of Leo Alexandroff, charged on oath before Henry R. Edmunds, United States commissioner, with desertion from the Imperial Russian cruiser Variag, and apprehended upon my warrant issued at the request of the vice-consul of Russia at Philadelphia upon the complaint of the captain of said cruiser Variag in accordance with the terms of the treaty between the United States and Russia-with the act of Congress in such case made and provided.
And you, the said keeper of the said prison, are hereby required to receive the said Leo Alexandroff into your custody in the said prison and-the same safely keep him subject to the order of the Russian vice-consul at Philadelphia or of the master of the cruiser Variag, or until he shall be discharged by the due course of law.
Witness the hand and seal of the said commissioner at Philadelphia this first day of June, A. D. 1900, and in the 124th year of the Independence of the United States.
Copy.
Henry R. Edmunds,
[Seal.] United States Commissioner.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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