in support of the charge, each Government shall endeavor to procure the provisional arrest of such criminal and to keep him in safe custody for such time as may be practicable, not exceeding forty days, to await the production of the documents upon which the claim for extradition is founded."

Under this article the time elapsing between provisional arrest and final surrender to the demanding Government is to be divided into three parts-the period between arrest and production of documents, that between production of documents and committal for surrender, and that between committal and actual surrender to the officials or agents of the demanding Government. The precise question raised by the Mexican note relates to the first period and is whether the treaty requirements as to the forty days' detention are met by production of the necessary extradition documents to the respective State Departments of the two Governments within the forty days specified.

It appears that the accustomed course, in general, under our extradition treaties with foreign nations is for the foreign Government to submit its papers through its proper officer directly to the extradition magistrate, and then, if the fugitive is committed for surrender, the papers are forwarded by the magistrate to the State Department for examination and approval. Ordinarily, then, this is the first point at which the State Department bears an official relation to the documents and evidence upon which the extradition of the alleged fugitive is sought. In the case of Mexico, however, the procedure and practice actually followed has been different, and it has been the uniform practice for the Mexican diplomatic authorities to submit their papers first to the State Department, and the papers are then returned to the Mexican embassy without formal action at that stage, with the suggestion that the embassy forward them at once to the extradition magistrate; and on its part the Mexican Government has always held that the production of our papers within forty days to its foreign office satisfies the provisions of the treaty. The question is practically important because, in view of the long distances and limited facilities for communication with

Mexico, it would often be difficult, or even impossible, to transmit the papers through the diplomatic channels to the respective State Departments and thence to the extradition magistrate in some outlying district, all within forty days. It must then be considered whether the language of the treaty justifies the view that the production of papers contemplated by the treaty is production to the respective foreign offices, for if so, production to the State Department of this Government in the case of a demand for extradition by the Government of Mexico within forty days is sufficient.

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It will be noted that Article X provides that the information regarding the issuance of a warrant by competent authority shall be conveyed " through the diplomatic channel," and that the Government thus addressed, "on being assured from the same source that a requisition for the surrender of such criminal is about to be made, shall endeavor to procure the provisional arrest of such criminal," etc. This language seems to contemplate that the whole course of proceeding up to the production of the documents is between the two Governments, and the reference to "the diplomatic channel" points to the foreign offices of the two Governments. I understand the Mexican Government has always held that production of our papers within forty days to its foreign office satisfies the provisions. of the treaty, and its present practice is in accordance with this view, and, as above stated, the existing conditions in Mexico make it difficult, if not impossible, to transmit the papers through the diplomatic channel to the Mexican extradition magistrate in an outlying district within forty days. The purpose of this treaty is the highly salutary one of securing the arrest and punishment of lawbreakers and dangerous members of the community. It should be so construed, in my opinion, as to give effect to this purpose. Moreover, it must be supposed that the two Governments acted and agreed together with the peculiar conditions. existing in Mexico present to the minds of both. If one construction assures a reasonable opportunity for each Government to furnish the other the proofs necessary to justify the continued detention of suspected criminals, while

another construction facilitates the escape of fugitives from justice and tends to impede the punishment of crime, the former should certainly be preferred in the absence of compelling words to the contrary.

I find no such words here. The prisoner is to be detained "not exceeding forty days" for a specified purpose, namely, "to await the production of the documents upon which the claim for extradition is founded." To whom must these "documents" be "produced?" The treaty does not say "production to the prisoner" nor "production to the committing magistrate;" and I see no sufficient reason why either set of words should be read into it. When the "documents" are submitted to the foreign office of the Government detaining the suspected criminal, there is certainly a "production" of them which satisfies the words of the treaty, and I think this also satisfies the intent and guards against the mischief which it is reasonable to suppose was apprehended by the two Governments. The Government receiving these documents can then see whether the charge against the prisoner it holds is serious and apparently sustained by evidence, and with this knowledge it can determine whether it will or will not prolong his detention. Doubtless the result of this interpretation is that the person under arrest may be detained for more than the forty days mentioned in the article, but the object of this limitation was, in my opinion, to compel reasonable diligence on the part of the Government seeking the extradition, and not to enable the person in custody to escape before the Government in question, however diligent, could furnish proofs of his probable guilt.

In view of the foregoing considerations, I have the honor to advise you that, in my opinion, the forty days during which the prisoner may be detained under the terms of this treaty "to await the production of the documents upon which the claim for extradition is founded" must be considered as meaning forty days prior to the production of the documents to the State Department in the United States. or the corresponding branch of the Mexican Government, and if the said documents are thus produced within forty days, the suspected criminal has no absolute right of release

under the terms of the treaty, but may be detained for a reasonable additional period to afford time for an investigation into his probable guilt or innocence.

I remain, my dear sir,

Yours, very respectfully,

CHARLES J. BONAPARTE.

The SECRETARY OF STATE.

OFFICERS OF REVENUE-CUTTER SERVICE-CIVIL WAR

SERVICE RETIREMENT.

Officers of the Revenue-Cutter Service who during the civil war served upon vessels of that Service which were armed, manned, and equipped as were naval vessels and were engaged in conjunction with the Navy in hostile operations against the enemy, "served in the naval forces of the United States" within the meaning of section 5 of the act of April 16, 1908 (35 Stat. 62), and upon retirement are entitled to have the rank and to receive three-fourths of the duty pay and increase of the next higher grade to that held by them at the time of retirement.

The mere fact that an officer of the Revenue-Cutter Service was in that Service during the civil war would not be sufficient to establish that he had "served during the civil war in the land or naval forces" if the location and character of his services were such that he did and could have done nothing more during the time of the civil war than he would have done in time of peace. If, however, the location of his vessel and the consequent range of his duties were such that he necessarily filled a place which must or would probably have been otherwise assigned to some other public armed force, then the fact that he did not take part in any engagement or actual conflict with the enemy will not deprive him of the benefits of the act of 1908.

DEPARTMENT OF JUSTICE,

July 10, 1908.

SIR: In your letter of May 19, 1908, you ask my opinion, in substance, whether those officers who in the civil war served upon vessels in the Revenue-Cutter Service, while engaged in conjunction with the Navy in hostile operations are entitled to the benefits of section 5 of the act of April 16, 1908 (35 Stat. 62), which provides:

"That any officer of the Revenue-Cutter Service with a creditable record who served during the civil war in the

land or naval forces of the United States shall, when retired, have the rank and receive three-fourths of the duty pay and increase of the next higher grade; and the provisions of this section shall apply to officers of the said Service now on the retired list."

You state, generally, the purpose, situation, and services of those vessels in the civil war, as follows:

"The records of this Department show the following as to the character of the duty performed by the vessels of the Revenue-Cutter Service during the period in question: They were, at the opening of hostilities in 1861, armed, manned, and equipped as were naval vessels of like size, and maintained on that footing throughout the war. They were a force available for emergencies or for any necessary military duty within their respective spheres of operation. Their crews were enlisted for a term of one year, and were required to take an oath upon enlistment; desertion operated as a bar to reentering the Service or enlisting in the Navy, and worked forfeiture of all pay and allowances due at the date of desertion, the conditions being in these features similar to those governing in the Navy.

"While, however, these vessels were thus a constant factor in military and naval operations, their stations and the limits of the territory which they were expected to cover in their cruising were determined by the exigencies of the service required of them by the Treasury Department. But within this limitation they were free, and were expected to act in harmony and, as necessity arose, in conjunction with the Army and Navy, and to engage in hostile demonstrations independently, which was whenever occasion required or opportunity offered; in a few instances engaged exclusively, or even ordinarily, in the performance of duties pertaining to military or naval operations, or such as are usually performed by naval vessels in time of war, but in the absence of necessity for such operations they were attending to their regular duties as revenue cutters, the two classes of interests-those pertaining to the protection of the customs revenue and those pertaining to military and naval operations-being so closely interwoven as to be practically inseparable. The latter operations