Desertion from a foreign army or navy is said not to be an extraditable offence ; 15 Harv. L. Rev. 657 ; but in Tucker v. Alexan droff, 183 U. S. 424, 22 Sup. Ct. 195, 46 L. Ed. 264, where the provisions of the 'treaty with Russia for the extradition of deserters from ships of war and merchant vessels were under consideration, it was held that a deserting seaman might be extradited, though the vessel to which he had been as signed was in the course of building and had not yet been accepted by the Russian government.
The treaties enumerate the• crimes for which persons may be surrendered, and in some other particulars limit their own appli cation. They also contain some provisions relating to the mode of procedure ; but, as it was doubted whether such stipulations had the force of law ; Park. Cr. Cas. 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 Stat. L.
302. This has since been amended; and the statutes on the subject are • found in' U. S. R. S.• §§ 5270-5277, as amended June 6, 1900. '. These acts embody those provisions con tained in the treaties relating to the proce dure, and contain others designed to facili tate the execution of the duty. assumed by treaty.
The 'following are the main provisions of the law relating to the practice: 1.. A com plaint under oath or affirmation charging the person with the commission of one of the enumerated crimes. 2. A warrant may be issued by any of the justices of the supreme court or judges of the several circuit or .dis trict courts of the' United States, or of a court of record of general jurisdiction of any State, or the commissioners authorized so to do by any of the courts of the United States. 3. The person arrested is to be brought fore the officer issuing the warrant, to the end that the evidence of criminality may he considered. 4. Copies of the depositions up-. on which an original warrant in the country demanding the fugitive may have been grant ed, 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 evi dence must be such as, according to the lacis of the place where the person arrested shall be found, would justify his apprehen sion and commitment for trial if the crime or offence had there been committed. 6. If
the evidence is deemed sufficient, the officer hearing it ,must certify the same, together with a• copy all the testimony taken be fore him, to the secretary of state, and com mit• the prisoner to the proper gaol until the surrender be' made, which must be within two months. 7. The secretary of state, on the proper demand being Made by the foreign government, nrde•S,; under his hand and seal of office, in the name and by authority of the president, the person so committed tO be delivered 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 sover eign power of their states.' '7 Ob. Attys. Gen. 6; 8 -id: 521. .BY act of Aug. 3, 1882,' it is directed that all extradition oases under treaties shall'he heard publicly ; 22 Stat. 215.
The usual method 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 Op. 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 the stipulation embrace cases of absence without flight as well as those of actual flight ; 8 Op. Attys. Gen. SOO.
' The treaties of the United States do not guarantee an asylum to a fugitive from any foreign country. They only provide how he' shall. be deprived of an asylum; Ker v. Illinois, 119 U. S: 436, 7 Sup. Ct. 225, 30 L.. Ed. 421. See as to the right of asylum G L. Mag, & Rev. 4th, 262. If the prisoner escapes, he may be retaken in the same man ner as any person accused of any crimp, against the laws in force in that part of the United States to which he .shall so escape shall be retaken on an escape; U. S. R. S. § 5272. The expense, of and delivery shall be borne by the ,party making the requisition.