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 er 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 execu tive 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. 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 Regula tions, (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. * 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. Local tribunals to order arrest of foreign deserters. 241. The police courts or magistrates of each nation shall, upon the application mentioned in the next article, order the arrest and surrender to his consul of any person charged with desertion, as therein provided, unless it appears that the person charged was at the time of shipping, and still is,' a member of the nation in which his extradition is claimed. For the purpose of making provision for the discharge and relief of seamen, all seamen regularly shipped in the ships of any nation are to be regarded as such nation's seamen. Most of the treaties only allow the exception in favor of citizens, when the party was such at the time of shipping; but obviously the same character must continue at the time of the application, to entitle the party to the exemption. Article IX. of the convention between the United States and France, Feb. 23, 1853, (10 U. S. Stat. at L. (Tr.,) 114,) contains an exception of somewhat the same effect, as follows: unless "citizens of the country where the demandis made, either at the time of their shipping, or of their arrival in the port." Application for extradition, how made. 242. Application for the extradition of deserters must be made in writing by the consul' of the ship's nation, accompanied with proof, by the exhibition of the register of the ship, the roll of the crew, or by other official documents; or, if the ship be absent, by copies of such documents, duly certified, that the person charged belongs to the ship, and with proof, by oath, of his identity.' 1 The application must be made by the consul, because in reference to the discharge, with his own consent, of a seaman or mariner, being a citizen of the consul's nation, the consul acts as the lawfully authorized guardian of the seaman of his nation, to hear and examine his complaints, and to afford him the only protection which the representative of his country can give him on foreign soil, viz: the termination of his connection with the ship. United States Consular Regulations, (1870,) ¶ 131, 133. ? The convention between the United States and Italy, Feb. 8, 1868, (15 U. S. Stat. at L., 190, Art. XIII.,) and some others, allow surrender without oath to identity, but it seems better to abrogate that exception. Capture and imprisonment. 243. The local authorities shall give all necessary aid in searching for and arresting the deserters, and shall, at the request and expense of the consul,' imprison them until restored to their ships, sent home, or discharged. By the provisions of this Code as to jurisdiction, the process of the local authorities may be executed on private and other unarmed foreign ships within the waters of a nation. 1 Convention or treaty between the United States and Dec. 5, 1868, Art. XII., U. S. Cons. Rsg., (1870,)¶500. 66 Belgium, IX., 10 U. S. Stat. at L., (Tr.,) 114. 'XIII., 15 Id., (Tr.,) 185. III., 10 Id.. 900. In many treaties of the United States, however, it is provided, that "deserters, when arrested, shall be at the disposal of their consuls," and 'may be confined in the public prisons, at the request and expense of those who shall reclaim them,”—meaning the agents, owners or masters of vessels on account of whom the deserters have been apprehended,“until restored to their ships, or sent back to their own country.” See treaty or convention between the United States and Bolivia, May 13, 1858, Art. XXXIV., 12 U. S. Stat. at L., 1003. II., 13 Id., 605. Prussia, May 1, 1828, 66 XI., 8 Id., 382. Norway, July Russia, Dec. 6-18, 1832, 4, 1827, And other treaties. United States Consular Regulations, (1870,) ¶ 35, and Appendix No. 1. It is noticeable that expenses of search and arrest are not provided for. Deserters to be sent back. 244. The deserters may be restored by the consul to the ship to which they belong, if within his jurisdiction, or sent back to his country in ships of any nation whatsoever. Limit of imprisonment. 245. Except as provided in the next article, the imprisonment of a deserter, under this Section, cannot continue more than two months,' reckoning from the day of the arrest; at the expiration of which time, and upon a notice of three days given to the consul, the deserter shall be set at liberty, and cannot be again arrested for the same cause. The time stated in the treaties as the limit of imprisonment, varies from two to six months. Treaty between the United States and Sweden and Norway, July 4, 1827, Art. XIV., 8 U. S. Stat. at L., 346, . Convention between the United States and France, Feb. 23, 1853, Art. IX., 10 Id., (Tr.,) 114., Consular convention between France and Austria, Dec. 11, 1866, Art. XII., 9 De Clercq, p. 669, Treaty between the United States and Russia, Dec. 6-18, 1832, 8 U. S. Stat. at L., 448, Treaty between the United States and Hawaii, Dec. 20, 1849, Art. X., 9 Id., (Tr.,) 182, two months. three months. three months. four months. six months. Delay of extradition for punishment of offense. 246. If a deserter is charged with committing an offense cognizable by the local authorities, they may defer his surrender until he is acquitted, or punished therefor. Consular convention between France and Portugal, July 11, 1866, Art. XIII., 9 De Clercq, 582. |