and sufficiently authenticated by the minister's certificate, would not, if presented to an examining magistrate in the United States, be alone sufficient to authorize him to certify the criminality of the party charged, on which to found his actual extradition; for such evidence would not justify his commitment by the local law where the examination takes place. 6 Opinions of U. S. Attorneys-General, p. 217. To authorize the arrest and removal of a fugitive from justice to the State having jurisdiction of the crime, it must distinctly appear, from the affidavits before the magistrate upon which the requisition was based, that the supposed criminal committed the crime in the State from which the requisition proceeds. Er-parte Smith, 3 McLean's U. S. Circ. Ct. Rep., 121. Whether a defense may be interposed is a question which has been raised, but it seems better that the extradition should be made on the accusation, properly supported, leaving the case to be tried abroad. See, however, Letter of Mr. Lawrence, in Trans. of Nat. Asso. for Prom. Social Science, 1866, p. 156. Evidence in case of convicted criminals. 222. In case sentence or judgment of guilt has been pronounced in the country making the requisition, surrender shall not be obligatory, except on presentation to the authorities of the nation on which the requisition is made, of the original sentence or judgment establishing the guilt of the accused, properly authenticated, or of an exemplified copy thereof, as prescribed in article 220. This article is suggested by the provisions of the convention between the United States and Italy, King of Sweden Mar. 23, 1868, Art. V., 15 U. S. Stat. at L.,(Tr.,) 131. Inquiry as to real motive of demand. 223. A nation upon which a demand for extradition is made, under this Section, may protect its right to give asylum, by looking behind the mere formal proofs presented in support of the demand, to see that it is not made for a purpose to which this Section does not apply; and, if satisfied that such is the case, may refuse the demand. Dana's Wheaton, § 115, note 73, p. 184. Clarke, (Extradition, p. 110,) lays down this rule. No surrender should be granted except on the declaration of the min ister of the foreign power that the fugitive is wanted for trial for the offense charged in the depositions used against him, and no other. Mr. Rathbone suggests that security should be given that the prisoner should have a public trial within a certain reasonable time, and that notice be sent to the representative abroad of the country surrendering the prisoner, that he may satisfy himself that these provisions of the treaty are carried out. Transactions of Nat. Asso. for Prom. Social Science, 1866, p. 144. Conflicting claims. 224. In case two or more nations claim a person, upon a charge of violating a provision of this Code, the nation within which the offense was committed has the prior right, unless proceedings upon the charge have already been commenced by the other nation. Surrender of those under arrest for local offenses may be deferred. 225. The surrender of a person claimed under this Section, who has been previously arrested for the commission of an offense against the laws of the country where he is found, or who has been there convicted of such an offense, may be deferred until he shall have been acquitted or punished therefor. This provision is founded upon the convention between the United States and Italy, (Extended to the) King of Sweden Mar. 23, 1868, Art. IV., 15 U. S. Stat. at L., (Tr.,) 130. IV., 10 Id., (Tr.,) 101. Feb. 22, 1868, "III., 15 Id., (Tr.,) 116. 66 Mar. 21, 1860, VI., 12 Id., 1126. Treaty between the United States and Bavaria, Sept. 12, 1853, Art. IV., 10 U. S. Stat. at L.,(Tr.,) 176. Convention between France and The Grand Duchy of Saxe Weimar, Aug. 7, 1858, Art, V., 7 De Clercq, 444. Surrender, notwithstanding civil arrest. 226. If the person claimed is under arrest in the country where he is found, on account of civil obligations, his surrender may be made notwithstanding, but upon condition that the right of the person concerned, 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 Presi dent, 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 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. 1 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 |