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Permit me to observe, that neither the original convention of extradition (November 9, 1843), nor the supplemental convention, speaks of " public establishments" (etablissements 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, "soustraciions commises par fes depositaires publics, mais seulement dans le cas ou elles seront punies de peines infamantes."
I begiu 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 employes 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 leas 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 corporation?, 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 "depositaires," 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 Penal, No. 172). But the more customary or technical phrase for the idea is "fonctionnairepublic" or simply "fonctionnaire" denoting persons invested with some part of the authority of the State (Block, Diet, de l'Admin. Francaise, sub voc.: Dalloz, Diet, 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 Eailroad Company is not, as such, an officer of the Government.
Can we ascribe any more available force to the term "depositaire public?" I hesitate to say so. I think the language of the "Code Penal" 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 depositaires 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 delits des fonctionnaires publics dans l'exercise de leurs fonctions" (Tripier, 836); that is to say, the persons denominated by the law "depositaires 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— a collector of certain droits, for instance—yet such persons are not the less public functionaries, in the understanding of the term in France, as they are also in the United States (Dalloz, tit. Fonc. Pub., art. ii. s. 5, No. 142).
This conclusion is confirmed by the consideration that other articles of the Code Penal make provisions for the offence of embezzlement by persons not public functionaries, the designation of such an act by the law being "abus de confiance" (tit. ii. c. 2, s. 2, § 2). In conformity with which is the fact, that in the several mandats d'arret communicated in this case by M. de Sartiges, the offence charged is "abus de confiance," exclusively applicable to private depositaries by the very terms of the Code Penal.
I should have been happy to come to a different result in the present inquiry, but it is not in my power.
Now to apply these conclusions to the case before me.
M. de Sartiges requests the extradition of six persons, two of whom are cashiers of the Northern Railroad Company. I apprehend, for the reasons given, that the articles of the original convention do not meet their case,—that the two cashiers were not either public officers or public depositaries; and certainly the terms of that convention do not reach the other four persons, their associates and confederates in the crime.
But the supplemental article of 1845 provides for the case. It authorizes the extradition, according to the American copy, of persons accused of burglary, "and the corresponding crimes included under the French law in the words vol qualifid crime;" which crimes, as more fully described in the French duplicate, constitute one of the forms of the very act committed by all these parties as charged in the mandats d'arret—namely, "vols commis a l'aide de fausses clefs dans une maison habitee." (See the Code Pdnal, tit. ii. c. 2, s. 1.)
The mandats d'arret do not show whether the crime was committed in the night-time, so as to constitute the crime of burglary by our law; but that is probable; and if not, still it is the case of the "vol qualifi.4 crime," according to the laws of France of one text, and of the " vols commis dans une maison habitee," with the circumstance of technical "effraction" of the other text, and so clearly within both versions of the supplemental convention.
The demand of extrudition is made in the present case upon sufficient authority—that is, a mandat d'arret duly certified and duly transmitted through the minister; but other proofs will be needed to procure from the judicial tribunals a decree on which to base an ultimate order of extradition by your department.
Hon. Wm, L. Marcy, Sec. of State. C. Cushing.
(12.) Opinion of the same Attorney General on the same subject (i).
Attorney General's Office, November 29, 1856.
Sir,—The communication of the French Minister, transmitted with your letter of the 24th, requesting the extradition of one David, presents a point of doubt requiring elucidation.
David is charged as an accomplice in an act of "vol commis la nuit, dans une maison habitee et a l'aide de fausses clefs." That is a crime comprehended in the terms of the supplement of Feb. 4, 1845, to the treaty with' France of Nov. 9, 1843, and in that respect the case would justify action on the part of the President.
But, in the mandat d'arret, David is described as "cotnmercant a New York;" and in the letter of M. de Sartiges, it is only said of him, that "il parait etre actuellement a New York;" and it is not expressly alleged in the papers that the acts of complicity were committed in France.
If David was guilty of the acts charged while in France, the fact that he was before, and afterwards, and at the time, a merchant or trader at New York would not prevent his extradition even if he were commercially domiciled in this country, nor would it though he had been naturalized here; and of course not if he remained a subject of France.
But it should, in my judgment, appear that the acts of complicity were committed by him while actually in France.
I have requested of M. de Sartiges explanation on this point, and meanwhile return the papers.
Hon. Wm. L. Marcy, Sec. of State. C. Cushing.
(i) 8 Attorney Generals' Opinions, 215.