OF SURRENDER UNDER TREATIES.
3. The treaties enumerate the crimes for which persons may be surrendered, and in some other particulars limit their own ap plication. They also contain some provisions relating to the mode of procedure ; but, as it was doubted whether such stipulations had the force of law, 1 Park. Crim. N. Y. 108, congress passed the act of August 12, 1848, entitled "An act for giving effect to certain treaty stipulations between this and foreign governments for the apprehension and de livery up of certain offenders." 9 U. S. Stat. at Large, 302.
This act embodies those provisions con tained in the treaties relating to the proce dure, and contains others designed to facili tate the execution of the duty assumed by treaty.
Before any person can be surrendered, a demand for him must be made upon the ex ecutive by the executive power of the state whose laws have been violated ; and it is said to be usual to prefer this demand before in stituting any Judicial proceedings for the arrest of the fugitive, 8 Opin. Attys. Gen. 521; but the act of congress does not require this to be first done. Id. 240.
4. The following are the leading provisions of the law relating to the practice. 1. A com plaint made under oath or affirmation charg ing the person to be arrested with the com mission of one of the enumerated crimes. 2. A warrant for the apprehension of the person charged may be issued by any of the justices of the supreme court or judges of the several district courts of the United States, or the judges of the several state courts, or the commissioners authorized so to do by any of the courts of the United States. 3. The per son arrested is to be brought before the of ficer issuing the warrant, to the end that the evidence of criminality may be con sidered. 4. Copies of the depositions upon which an original warrant in the country de manding the fugitive may have been granted, certified under the hand of the person issuing such warrant, and attested upon the oath of the party producing them to be true copies of the original depositions, may be received in evidence of the criminality of the person apprehended. 5. The degree of evidence must be such as, according to the laws of the place where the person arrested shall be found, would justify his apprehension and commitment for trial if the crime or offence had there been committed. 6. If the evi dence is deemed sufficient, the officer hearing it must certify the same, together with a copy of all the testimony taken before him, to the secretary of state, and commit the prisoner to the proper gaol until the surrender be made, which must be within two calendar months. 7. The secretary of state, on the proper demand being made by the foreign government, orders, under his hand and seal of office, in the name and by authority of the president, the person so committed to be de livered to such person as may be authorized, in the name and on behalf of such foreign government, to receive him. 8. The demand
must be made by and upon those officers who represent the sovereign power of their states. 7 Opin. Attys. Gen. 6; 8 id. 521.
5. The convenient and usual method of act tion is for some police-officer or other special agent, after obtaining the proper papers in his own country, to repair to the foreign country, carry the case through with the aid of his minister, receive the fugitive, and conduct him back to the country having jurisdiction of the crime. 8 Opin. Attys. Gen. 521.
In all the treaties the parties stipulate upon mutual requisitions, etc. to deliver up to justice all persons who, being charged with crime, " shall seek an asylum or shall be found in the territories of the other." The terms of this stipulation embrace cases of absence without flight, as well as those of actual flight. 8 Opin. Attys. Gen. 306. After the arrest, and until the surrender, it is the duty of the United States to provide a suitable place of confinement and safely keep the pri soner. 8 Opin. Attys. Gen. 396. If, how ever, the prisoner escapes, he may be retaken in the same manner as any person accused of any crime against the laws in force in that part of the United States to which he shall so escape may be retaken, on an escape.
9 U. S. Stat. at Large, 303.
6. It is provided in all the treaties that the expense of the apprehension and delivery shall be borne and defrayed by the party making the requisition.
In the treaties with Prussia and other states of the Germanic Confederation, and with Austria and the Two Sicilies, it is pro vided that neither party is to surrender its own subjects or citizens to the other. In those with France, Austria, the Swiss Con federation, and the Two Sicilies, it is provided that the stipulation shall not extend to crimes committed anterior to the date of the treaty. In those with France, Austria, Baden, the Swiss Confederation, and the Two Sicilies, crimes of a political character are excluded ; and in those with Prussia and other states of the Germanic Confederation, and with Austria, it is provided that if the person accused shall have committed a new Crime in the terri tories of the state where he has sought 'an asylum or shall be found, he shall not be de livered up until he shall have been tried and shall have received the punishment due to such new crime or shall have been acquitted thereof.