one, in the execution of our treaty stipulations in this respect, and more especially to aid in removing those obstacles of pure technicality and form, the frequent recurrence of which, under the wretched system of criminal jurisprudence introduced into the United States from Great Britain, tends to render the administration of justice a game of sharps between the injured community on the one side and the criminal violation of the laws on the other side, in which contest chicanery too frequently gets the better of truth; and I therefore most respectfully recommend that new letters be issued in this case upon the papers now presented by M. Boilleau.

The object to be accomplished in all these cases is alike interesting to each Government—namely, the punishment of malefactors, the common enemies of every society. While the United States afford an asylum to all whom political differences at home have driven abroad, it repels malefactors, and is grateful to their Governments for undertaking their pursuit and relieving us from their intrusive presence.

Hon. Wm. L. Marcy, Sec. of State.

C. CUSHING.

(10.) OPINION of the same Attorney General on the same subject (1).

Attorney General's Office, February 28, 1856. SIR,-The question of extradition presented by Mr. Joseph's papers is this:

By a statute of the State of California, the act of fraudulent breach of trust by private persons is declared to be "grand larceny," and indictable as such. Mr. Joseph seeks the extradition of parties who have been indicted under this statute in the State of California, and who, it is supposed, have taken refuge in France.

It is clear that the act indicted is not embraced within the terms. of the convention between the United States and France for the reciprocal surrender of criminals, and which of this class of offences applies only to embezzlement by public depositaries.

But Mr. Joseph supposes that the case may be provided for by the article additional to the above convention, which speaks of (1) 7 Attorney Generals' Opinions, 643.

"crimes included under the French law, in the words vol qualifié crime." Beyond all doubt he is mistaken in this supposition. The word crime in the French "Code Pénal" nearly corresponds to our technical term felony, while the French word délit is nearly equivalent to our law term misdemeanor. (Code Pénal, dis. prél., art. 1.) And in order to be qualified as crime, a vol must be committed with violence or menaces, or it must be committed in a dwelling-house, with circumstances either of night and of escalade, or of "effraction." Such, indeed, is the express tenor of the French duplicate of this additional article.

In truth, the case presented by Mr. Joseph is nothing but the "abus de confiance" of the laws of France. (Code Pénal, liv. iii. tit. 2, s. 2, § 2.)

I do not understand how it happened that, in the English duplicate of this article, this imperfect indication of a class of cases by description in French technical terms, was inserted. A literal translation of the corresponding clause in the French duplicate would have been a much better mode of expressing the undertaking of the United States in the premises.

Hon. Wm. L. Marcy, Sec. of State.

C. CUSHING.

(11.) OPINION of the same Attorney General on the same subject (1).

Attorney General's Office, September 30, 1856. SIR,-Your communication of yesterday encloses the letter of the Count de Sartiges, envoy of the Emperor of the French, requesting "the extradition of six individuals, who, after having abstracted values for a considerable sum from the chest of the Northern Railroad Company, have taken refuge in the United States."

M. de Sartiges suggests that the administration of the Northern Railroad is an establishment authorized by the French Government, subventioned by it, and for these reasons entering into the class of public establishments mentioned in the convention between France and the United States.

(1) 8 Attorney Generals' Opinions, 106.

Permit me to observe, that neither the original convention of extradition (November 9, 1843), nor the supplemental convention, speaks of "public establishments" (établissements publics).

The provision which M. de Sartiges had in his mind is undoubtedly that which speaks of " embezzlement by public officers, when the same is punishable with infamous punishment;" or, as it stands in the French copy, "soustractions commises par les dépositaires publics, mais seulement dans le cas ou elles seront punies de peines infamantes."

I begin with the expression "public officer" of the American copy. We can have no difficulty as to the meaning of the word “office.” That, in its primitive sense, signifies duty merely; but derivatively, the right of some particular duty belonging to the party as a function.

The only question regards the word “public.”

Functionaries of the Government, in all its departments, civil or military, supreme or subordinate, general or provincial, political or municipal, are undoubtedly "public officers."

Does the application extend beyond these persons, and reach the officers of corporate bodies created or authorized by the Government, and to which it contributes funds either as an associate or otherwise?

It cannot be successfully argued that the nature of the duties performed by the officers of such corporate bodies decides the question. A banking or railroad company, specially authorized and aided by the Government, subserves public uses; but so does a banking or other company existing spontaneously, or in virtue of general laws, as by the simple association of capitalists disconnected from the Government. Indeed, every merchant, manufacturer, book publisher, trader, and so forth, acts with relation to the whole community; and in that sense his employés are just as much public officers as are those of a railroad company.

In truth, the term "public," as applied to officers, must have meaning wholly independent of the question of greater or less publicity of the duties discharged, or acts performed; for there may be a public officer with functions the most reserved, limited, and confidential-as, for example, an officer of the police or

customs.

The case before us, it is true, is of corporations, which, in the popular sense of the term, may be called public; but they are public in the sense of their use only, not of their constitution. The distinction is indicated by the Court in the case of Bonaparte v. The Camden Railroad Company. "Generally speaking," says that Court, "public corporations are towns, cities, counties, parishes, existing for public purposes: private corporations are for banks, insurance, railroads, canals, bridges, and so forth, where the stock is owned by individuals, though their uses may be public" (1 Baldwin's C. C. Rep. 222).

Nor is the conclusion on this point different, though the State happens to hold a part of the stock, and thus to be a corporator, and, as such, to participate in the management of the company. (Bank of the United States v. Planters' Bank of Georgia, 9 Wheaton's Rep. 907: Turnpike Company v. Wallace, 8 Watts, R., 316: Bank of United States v. McKenzie, 2 Brockenbrough's, R., 395.)

I feel constrained to think, therefore, that we must look at "public officers" as meaning persons who discharge the functions of the Government as such, who are appointed by or officially responsible to it, and who thus enter into the organization of the Government.

At the same time it is in the highest degree important to the public interest that officers of these great corporations, who have in charge large sums of money, should not be able to take refuge in foreign countries, enriched by the fruits of the criminal embezzlement of the funds of a bank or railroad company, especially in view of the fact that crimes of less gravity, such as forgery, are generally provided for in treaties of extradition.

Meanwhile, though it would on the whole seem to me, that as the expression "public officers" is used in our law, it implies officers of the Government, it would not follow that the " embezzlement" intended by the treaty must be of the funds of the Government; that is to say, the word "public," as here employed, refers to the political society as a whole, and in its political capacity (Cruise's Dig. by Greenleaf, vol. iii. 36 n.). Such is the precise force of the word as defined by jurists of the greatest authority (Com. Dig. "Officer E").

In the original convention between the United States and France, however, there is, we have seen, a notable difference of language in the two copies. The French has it, public “dépositaires,” instead of public "officers," as it is in the English.

In France the term "officier public" is occasionally employed in the same sense with our term "public officer" (Ex. gr. Code Pénal, No. 172). But the more customary or technical phrase for the idea is "fonctionnaire public," or simply "fonctionnaire," denoting persons invested with some part of the authority of the State (Block, Dict. de l'Admin. Française, sub voc.: Dalloz, Dict. de Jurisp. sub voc.).

If the word employed in the French text were “fonctionnaire public," it would be necessary to conclude at once that the treaty does not apply to the case before me; it being clear that an officer of the Northern Railroad Company is not, as such, an officer of the Government.

Can we ascribe any more available force to the term "dépositaire public?" I hesitate to say so. I think the language of the "Code Pénal" leads to the opposite conclusion.

The section of the Code which has for its object to punish the case of the treaty, that is, "Soustractions commises par les dépositaires publics," is a sub-section (Liv. iii. tit. 1, c. 3, s. 2), the title of which is, "De la forfaiture et des crimes et délits des fonctionnaires publics dans l'exercise de leurs fonctions" (Tripier, 836); that is to say, the persons denominated by the law "dé-positaires publics" are comprehended in and part of the class "fonctionnaires publics."

To the same effect is the tenor of the articles defining the crime. "Every collector," it says, "every clerk of collector, public depositary, or accountable person who shall have embezzled or converted to his own use moneys, public or private, or effects having the place of the same, or documents, title-papers, acts, personal effects, which were in his hands in virtue of his functions, shall be subject to the punishment of forced labour for a certain time" (Art. 169). Does not this language import public functionaries? So it appears to me. And although cases have come under my observation of persons comprehended within the penalties of this Act, who are not appointed directly by the Government