Dainese v. Hale

Citation91 U.S. 13,23 L.Ed. 190
PartiesDAINESE v. HALE
Decision Date01 October 1875
CourtUnited States Supreme Court

ERROR to the Supreme Court of the District of Columbia.

This action was brought to recover the value of certain goods, chattels, and credits of the plaintiff, which the defendant, in November, 1864, then being Consul-General of the United States in Egypt, caused to be attached. The declaration alleged that the defendant, by usurpation and abuse of his power as such consul-general, and for the malicious purpose of injuring the plaintiff, took cognizance of a certain controversy between the plaintiff and Richard H. and Anthony B. Allen (all being citizens of the United States, and none of them residents of or sojourners within the Turkish dominions at that time), and made and issued the order of attachment by virtue of which the seizure in question was made.

The defendant pleaded, that, at the time of issuing the attachment, he was agent and Consul-General of the United States in Egypt, and was furnished with a letter of credence from the President of the United States to the Pacha; that in his said official capacity he exercised the functions and duties of a minister; and by the law of nations, as well as the laws of the United States, he was invested with judicial functions and power over citizens of the United States residing in Egypt, and, in the exercise of those functions, took cognizance of the cause referred to in the declaration, and issued the attachment complained of.

To this plea there was a general demurrer, which was overruled.

Mr. F. P. Cuppy and Mr. S. S. Henkle for the plaintiff in error, and Mr. W. Penn Clarke for the defendant in error.

MR. JUSTICE BRADLEY delivered the opinion of the court

The defendant, by his plea, asked the court to take judicial notice that his official character gave him the jurisdiction which he assumed to exercise. Could the court do this? Can this court do it?

It cannot be contended that every consul, by virtue of his office, has power to exercise the judicial functions claimed by the defendant; for it is conceded that this is not the case in Christian countries. And whilst, on the other side, it is also conceded that in Pagan and Mahometan countries it is usual for the ministers and consuls of European States to exercise judicial functions as between their fellow-subjects or citizens, it clearly appears that the extent to which this power is exercised depends upon treaties and laws regulating such jurisdiction. The instructions given by the British Foreign Office to their consuls in the Levant in 1844, as quoted by Mr. Phillimore, do not claim any thing more. They say,——

'The right of British consular officers to exercise any jurisdiction in Turkey in matters which in other countries come exclusively under the control of the local magistracy depends originally on the extent to which that right has been conceded by the sultans of Turkey to the British crown; and, therefore, the right is strictly limited to the terms in which the concession is made. The right depends, in the next place, on the extent to which the Queen, in the exercise of the power vested in her Majesty by act of Parliament, may be pleased to grant to any of her consular servants authority to exercise jurisdiction over British subjects.' Int. Law, vol. ii. p. 273, sect. 276.

Historically, it is undoubtedly true, as shown by numerous authorities quoted by Mr. Warden in his treatise on 'The Origin and Nature of Consular Establishments,' that the consul was originally an officer of large judicial as well as commercial powers, exercising entire municipal authority over his countrymen in the country to which he was accredited. But the changed circumstances of Europe, and the prevalence of civil order in the several Christian States, have had the effect of greatly modifying the powers of the consular office; and it may now be considered as generally true, that, for any judicial powers which may be vested in the consuls accredited to any nation, we must look to the express provisions of the treaties entered into with that nation, and to the laws of the States which the consuls represent.

The transactions which are the subject of this suit took place in 1864; and the powers of our Consul-General in Egypt at that time must be regulated by the treaties with Turkey and by the laws of the United States then in force.

The first treaty between the United States and the Ottoman Porte was concluded in 1830; and, amongst other things, it provided, in Article III., that 'American merchants established in well-defended States of the Sublime Porte for purposes of commerce shall not be disturbed in their affairs, nor shall they be treated in any way contrary to established usages.' By Article IV., it was further provided as follows:——

'If litigations and disputes should arise between the subjects of the Sublime Porte and citizens of the United States, the parties shall not be heard, nor shall judgment be pronounced, unless the American dragoman be present. Causes in which the sum may exceed five hundred piasters shall be submitted to the Sublime Porte, to be decided according to the laws of equity and justice. Citizens of the United States of America, quietly pursuing their commerce, and not being charged or convicted of any crime or offence, shall not be molested; and, even when they may have committed some offence, they shall not be arrested and put in prison by the local authorities, but they shall be tried by their minister or consul, and punished according to their offence, following, in this respect, the usage observed towards other Franks.'

In 1848 an act of Corngress was passed, entitled 'An Act to carry into effect certain provisions in the treaties between the United States and China and the Ottoman Porte, giving certain judicial powers to ministers and consuls of the United States in those countries.' 9 Stat. 276. A treaty had been made with China in 1844, conceding to the authorities of the United States full civil and criminal jurisdiction between citizens of the United States in that country. The law was passed in reference to this treaty and to that with the Ottoman Porte before cited.

This act contained regulations as to the mode of exercising the judicial powers stipulated for in the treaty with China. It conferred these powers upon the resident commissioner and consuls respectively, and authorized them to adjudicate in accordance with the laws of the United States and the common law, supplemented, when these were insufficient, by decrees and regulations to be made by the commissioner himself. The commissioner, with the advice of the consuls, was to prescribe the forms of process and proceeding. By the twenty-second section of the act, its provisions, so far as related to crimes committed by citizens of the United...

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21 cases
  • United States v. Spector
    • United States
    • U.S. District Court — Southern District of California
    • December 14, 1951
    ...likewise into the Republic of Mexico. The court may also take judicial notice of our treaties with those countries. Dainese v. Hale, 1875, 91 U.S. 13, 20, 23 L.Ed. 251; see also Ennis v. Smith, 1852, 14 How. 400, 55 U.S. 400, 427-430, 14 L.Ed. 472; The New York, 1899, 175 U.S. 187, 196-197,......
  • United States v. Schneiderman, 21888
    • United States
    • U.S. District Court — Southern District of California
    • November 28, 1951
    ...likewise into the Republic of Mexico. The court may also take judicial notice of our treaties with those countries. Dainese v. Hale, 1875, 91 U.S. 13, 20, 23 L.Ed. 190; see also Ennis v. Smith, 1852, 14 How. 400, 55 U.S. 400, 427-430, 14 L.Ed. 472; The New York, 1899, 175 U.S. 187, 196-197,......
  • Aerovias Interamer. De Panama v. Board of County Com'rs
    • United States
    • U.S. District Court — Southern District of Florida
    • September 20, 1961
    ...and the court held that in case of a conflict between a treaty and an Act of Congress the latter in time would control. 15 Dainese v. Hale, 91 U.S. 13, 23 L.Ed. 190. 16 See also: In re Lee Sing, C.C., 43 F. 359. 17 Noel v. Linea Aeropostal Venezolana, D.C., 144 F.Supp. 359; Indemnity Ins. C......
  • Liverpool Steam Co v. Phenix Ins Co
    • United States
    • United States Supreme Court
    • March 5, 1889
    ...at law and in equity, in England and America. Church v. Hubbart, 2 Cranch, 187, 236; Ennis v. Smith, 14 How. 400, 426, 427; Dainese v. Hale, 91 U. S. 13, 20, 21; Pierce v. Indseth, 106 U. S. 546, 1 Sup. Ct. Rep. 418; Ex parte Cridland, 3 Ves. & B. 94, 99; Lloyd v. Guibert, L. R. 1 Q. B. 115......
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