to pursue the remedy before the competent tribunals, is preserved. Convention between France and The Grand Duchy of Saxe Weimar, Aug. 7, 1858, Art. V., 7 De Clercq, 444. Conditional extradition. 227. A nation upon which a demand for extradition is made under this Section, may impose conditions in reference to the treatment of the person surrendered. Bluntschli, (Dr. Int. Cod.,) § 401. Member of a third nation. 228. If the person whose surrender is demanded be a member of a third nation, which is a party to this Code, the surrender may be deferred until his nation has been informed of the proceeding, and invited to state objections, if any, to the extradition. In such event, if a case for extradition be established, the nation on which the demand is made may deliver the person accused either to his own nation or to that making the demand. Convention between France and The Grand Duchy of Saxe Weimar, Aug. 7, 1858, Art. VII., 7 De Clercq, 444. As to the obligation of a nation to surrender its own members, see note 5 to Article 215. Surrender, by whom made. 229. Except as provided in articles 230 and 231, the surrender shall be made only by authority of the proper executive officers of the nation upon whom the demand is made. This provision is usual in the American treaties. By the British and American systems of extradition, the judicial inquiry and determination of the fact of culpability is interposed as a condition to the surrender, but the judicial magistrate is not vested with power to make the surrender. Dana's Wheaton, § 115, note 73. The question whether the casus fœderis has arisen, or whether the compact will be executed, is a political question, to be decided by the President, and the courts have no power to direct or contravene his decision. Matter of Metzger, 5 New York Legal Observer, 83. Surrender in case of offenses committed on the frontier. 230. In the case of persons found in a frontier State or Territory of one nation, upon the boundary between it and a contiguous nation, the surrender demanded by such contiguous nation, or its frontier State or Terriritory, may be made either as provided in the last article, or by the chief civil authority of the frontier State or Territory in which the person is found, or by such chief civil or judicial authority of the district or country bordering on that frontier, as may for this purpose be duly authorized by the civil authority of such frontier State or Territory; or when from any cause the civil authority of such State or Territory shall be suspended, by the chief military officer in command of such State or Territory. See Article 212. Treaty between the United States and Mexico, Dec. 11, 1861, Art. II., 12 U. S. Stat. at L., 1200. Surrender by colonial government. 231. In the case of persons found within the territorial jurisdiction of a colonial government, the surrender may be made either as provided in article 229, or by the Governor or executive officer of the colony. Such officer may either make the surrender demanded of him, or may refer the question to the government of the nation to which he belongs. See Article 213, and note. Things in prisoner's possession. 232. All articles in the possession of the prisoner at the time of his arrest, and taken with him, shall be delivered up on making the surrender, including not only articles stolen, but all those which can serve as evidence of guilt. Convention between France and The Grand Duchy of Saxe Weimar, Aug. 7, 1858, Art. III., 7 De Clercq, 444. Second arrest. 233. The discharge of a person arrested under the provisions of this Section, does not preclude a second arrest under a new complaint relating to the same offense,' except where he is entitled to a discharge by reason of the lapse of time. 6 Opinions of U. S. Attorneys-General, p. 91; 10 Id., 501. Custody of the prisoner. 234. Any person duly appointed, by the nation demanding the extradition, its agent to receive the surrender, is entitled to the same protection, in the execution of his duties, within the jurisdiction of the nation making the surrender, as is given by its laws to its own officers in the exercise of similar functions; and the obstruction of such agent, and the rescue or attempted rescue of the person from his custody, is punishable in the local tribunals, in the same manner as in the case of obstruction to, or rescue from, the local officers. This article is suggested by the statute to provide for giving effect to the Act of Congress of the United States for the extradition of criminals, passed March 3, 1869, 15 U. S. Stat. at L., 337. Discharge in case of delay of extradition. 235. A person surrendered under this Section must be conveyed out of the country making the surrender, within two months after his commitment for extradition, and in default thereof, shall be discharged. Act of Congress of the United States, August 12, 1848, 9 U. S. Stat. at L., 303, § 4. Limitations of time extended in certain cases. 236. The time necessary to allow of the intervention of the nation to which a colony belongs, according to article 213, or of that to which a foreigner whose extradition is demanded belongs, according to article 228, is not to be computed as a part of any of the times limited by the provisions of this Section for the arrest or extradition of an alleged fugitive from justice. Restrictions as to punishment. 237. No person surrendered under the provisions of this Section shall be prosecuted or punished, in the nation to which he is surrendered, for any offense committed previous to that for which his surrender was demanded,' nor for any offense which was not mentioned in the demand,' or which is of the classes mentioned in article 215, committed before the extradition. 1 This provision is suggested by the convention between the United States and Italy, March 23, 1868, 15 U. S. Stat. at L., (Tr.,) 130, where, however, it is restricted to " ordinary" crimes. 2 If, during the proceedings, a new crime is discovered, not mentioned in the demand, a new demand must be made, founded thereon, in order to entitle the demanding nation to punish for the latter offense. Fioré, Nouveau Droit International, vol. 1, p. 329. 3 According to the conventions between France and several other nations, (cited in Clarke on Extradition, p. 178,) a person whose extradition has been accorded can in no case be prosecuted or punished for any political crime or offense committed before the extradition. Necessary legislation to be provided. 238. Each nation which requires a judicial investigation before surrendering in extradition, must provide by law the necessary judicial power to carry into effect the provisions of this Section. In England, the requisition must always be made through the executive government; and in treaties of this description made by that nation, the preliminary action of the Legislature is necessary. At the time of the signature of the treaty of 1842, between the United States and Great Britain, the British Minister stated that the rendition treaty could have no effect in the British dominions in Europe till Parliament acted upon it. In Canada, it could have immediate effect. Law rence's Wheaton, p. 241, note. The constitutional doctrine in Great Britain is, according to Forsyth, (Cases and Opinions in Constitutional Law, p. 369, note,) that the Crown may make treaties with foreign States for the extradition of criminals; but those treaties can only be carried into effect by act of Parliament; for the Executive has no power, without statutory authority, to seize an alien here and deliver him to a foreign power. Hansard's Parliamentary Debates, vol. LX., pp. 317-327. And the law is the same in the United States. Kent's Commentaries, p. 284. 3 SECTION II. EXTRADITION OF DESERTERS. The provisions of this Section are substantially the same as those common to nearly all the consular and commercial treaties. The treaties are so numerous, and the provisions in them so similar, that it seems unnecessary to refer to them in detail. See United States Consular Regulations, (1870,) ¶ 35, and Treaties in Appendix No. 1. ARTICLE 239. Marine deserters only intended. 241. Local tribunals to order arrest of for- 242. Application, how made. 245. Limit of imprisonment. 246. Delay of extradition for punishment Marine deserters only intended. 239. This Section applies to the inmates, other than passengers, of ships, public or private, of any nation a party to this Code, but to no other persons. Neither Great Britain nor the United States have ever recognized any obligation to surrender military deserters. “Desertion" defined. 240. "Desertion" is the absenting' one's self from the ship and her service, without leave or legal justification,' and against the obligation of the party, with an intent not to return thereto. 1 A casual overstay of leave is not desertion; but to refuse to return, after an absence on leave, is equally a desertion as to quit the ship. United States Consular Regulations, (1868,) p. 317, § 623. 2 Leaving the vessel on account of cruelty, bad provisions, or other legal justification, is not desertion. Magee v. The Moss, Gilpin's U. S. District Court Reports, 219; Hanson v. Rowell, 1 Sprague's (U. S.) Admiralty Decisions, 117; Hart v. The Otis, Crabbe's U. S. Dist. Ct. Rep., 52; Freeman v. Baker, Blatchford & Howland's Cases in Adm., 372. |