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on shipboard with mutinous crews, arresting runaway seamen, adjusting claims of Chinese for damages suffered by them at the hands of drunken American sailors, and procuring the release of kidnaped coolies, who were about being taken from Whampoa in American vessels engaged in that inhuman traffic. For these and other services Mr. Blanchard states that he has never received any remuneration, "either from the United States consul or from fees collected, or in any other manner, or from any source whatever." That these services were faithfully performed is shown by the following letter: BUREAU OF EQUIPMENT AND CLOTHING, Washington, D. C., November 17, 1862.

Henry P. Blanchard, esq., was performing the duties of United States marshal of Canton and Whampoa while I was in command of the U. S. ship Portsmouth in China, and these services were effectually performed.

As Mr. Blanchard has not been able to obtain his pay for these services rendered, I trust that his claim may now receive due attention, and he obtain the usual or allowed compensation.

A. H. FOOTE, Rear-Admiral, United States Navy.

It appears by a letter from the Department of State that when the act of 1848 was passed it was supposed that the officers of consular courts would be remunerated by fees, and that a subsequent act by which the salaries of the marshals of these courts was fixed at $1,000, in addition to fees, did not go into effect until July 1, 1860.

The claim of the memorialist from the 1st of July, 1860, to the close of his term of service on the 30th of August, 1860, has been paid by a special appropriation made by Congress, that portion of his official duties having been legalized by the act of June 22, 1860. He now asks remuneration for his services from February 22, 1848, to July 1, 1860, at the rate of $1,000 per annum, amounting to $2,354.24, that being the balance due him, as the following statement shows: Original claim for salary from February 22, 1858, to August 30, 1860... $2,520.00 Amount paid by appropriation from July 1, 1860, to August 30, 1860

Leaving due the amount of salary from February 22, 1858, to July 1, 1860...

165.76

2,354.24

Claims of a similar nature have heretofore been paid. In the deficiency bill approved May 31, 1854, was an appropriation of $1,781.74 to "Thomas M. Johnson, for his services at the port of Shanghai, from the 9th December, 1851, to the 15th September, 1853;" and the consular and diplomatic bill approved May 26, 1860, contained an item, passed on the strong recommendation of General Cass, then Secretary of State, by which $4,760, or so much thereof as might be necessary, was appropriated "to enable the Secretary of State to defray the cost of the prison ship at Canton, in China, from the 1st day of January, 1854, to the 1st day of January, 1857, and for compensation of the marshal of the consular court at Canton, from January 1, 1854, to the 15th of December, 1857.”

It appears that the memorialist was the successor of Mr. James P. Cook, who was by the above act remunerated for his services as "marshal of the consular court at Canton from January 1, 1854, to the 15th of December, 1857." The rebellion having made it necessary for foreigners to leave Canton, the functions of the consular court were suspended from that time until the February following, when the services of the memorialist commenced. While the predecessor of the memorialist has thus been paid by special legislation, his successor received a salary under the act of June 22, 1860.

S. Doc. 231, pt 3—47

When the claim was before the Senate a few weeks since, it was not denied that in justice and equity the memorialist was entitled to the relief asked for; but it was ruled out of order as an amendment to the deficiency bill, and it was suggested to be a proper case for a private bill. Since then Mr. Blanchard has petitioned for relief.

Your committee, after a full examination of the case, was of the opinion that the facts and the precedents cited show that the memorialist is entitled to relief, and report a bill accordingly, the passage of which they recommend.

[See p. 716.] February 25, 1863,

[Senate Report No. 107.]

Mr. Sumner made the following report:

The Committee on Foreign Relations, to whom was referred House bill No. 622, for the relief of Francis Dainese, with accompanying papers, praying compensation for judicial services performed by him while consul at Constantinople, under the act approved August 11, 1848, have had the same under consideration, and now report:

That this case has been for many years before Congress; that the Committee on Foreign Affairs in the House of Representatives having considered it and decided in its favor, offered an amendment to the deficiency bill on the 8th of February, 1854, which was adopted, in Committee of the Whole and in the House, but this amendment dropped with the bill, which failed in the Senate; that subsequently the same amendment was attached to the civil and diplomatic bill in the House of Representatives, but was struck off in the Senate; that two reports in favor of the claim were made by the Committee on Foreign Affairs in the House of Representatives, one by Mr. Chandler, of Pennsylvania, and the other by Mr. Burlingame, of Massachusetts, and that during the present session another report in favor of it has been made by the same committee.

It appears from the records and files of the Department of State that the claimant was the recognized incumbent of the United States consulate at Constantinople from the 16th of May, 1849, to the 20th of December, 1852. The present claim is for compensation during this period, on account of alleged judicial services under the statute of 1848. In order to determine the validity of this claim it will be necessary to consider carefully the statute under which it is made. The differences of opinion seem to have arisen from inattention to this statute.

The statute is 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," and was approved August 11, 1848. (9 Stat. L., 276-280.) By the first section the commissioner and consuls of the United States appointed to reside in China are vested with judicial authority. In subsequent sections (making seventeen in all) this jurisdiction is declared and defined, both in criminal and civil affairs. The commissioner, in addition to his power to make regulations and decrees

is authorized to hear and decide all cases, criminal and civil, which may come before him under the provisions of this act, and to issue all processes necessary to

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execute the power conferred upon him. And he is hereby fully empowered to decide finally any case upon the evidence which comes up with it, or to hear the parties further, if he thinks justice will be promoted thereby: and he may also prescribe the rules upon which new trials may be granted, either by the consuls or by himself, if asked for upon justifiable grounds. (Sec. 13.)

The commissioner is further authorized

to establish a tariff of fees for judicial services, which shall be paid by such parties and to such persons as the said commissioner shall direct. (Sec. 17.)

After declaring and defining the judicial duties of the commissioner in China and the consuls there the statute proceeds to fix the compensation in addition to salary, as follows:

That in consideration of the duties herein imposed upon the commissioner there shall be paid to him out of the Treasury of the United States, annually, the sum of $1.000 in addition to his salary; and there shall also be paid, annually, to each of said consuls, for a like reason, the sum of $1,000 in addition to consular fees. (Sec. 18.)

It will be observed that the statute thus far is exclusively applicable to the commissioner and consuls in China. Nothing is said about Turkey, and the compensation is "in consideration of the duties herein imposed." At last we have the following section, by which certain duties, different from those already mentioned, are conferred upon the minister and consuls of the United States in the ports of Turkey:

And be it further enacted, That the provisions of this act, so far as the same relate to crimes committed by citizens of the United States, shall extend to Turkey, under the treaty with the Sublime Porte of May 7, 1830, and shall be executed in the dominions of the Sublime Porte, in conformity with the provisions of said treaty, by the minister of the United States and the consuls appointed by the United States to reside therein, who are hereby, ex officio, vested with the powers herein contained for the purposes above expressed, so far as regards the punishment of crime. (Sec. 22.)

On looking carefully at this section two things will be observed: First, that the duties of the minister and consuls in Turkey are restrained to cases of crimes, and, secondly, that nothing is said with regard to any compensation in addition to salary. Had the same large judicial duties, embracing civil as well as criminal cases, which had been conferred upon the commissioner and consuls in China been also conferred upon the minister and consuls in Turkey, it might have been reasonable to allow the latter officers the same compensation which is allowed to the former. From the equality of services it might then have been argued that there should be an equality of compensation. But it is obvious on the face of the statute that there is no such equality of service. The two cases differ essentially. It was probably on the ground of this difference that the statute made an essential difference with regard to the compensation. In the one case compensation is expressly allowed; in the other case nothing is said on the subject.

The conclusion is clear that, according to the statute, certain limited services are required of the minister and consuls in Turkey, for which no compensation is provided in addition to salary. There is not a word in the statute to sanction any such compensation.

This interpretation of the statute is in harmony with the opinions of the Department whenever the question has been presented. Without stopping to adduce the opinions of Mr. Marcy and Mr. Cass, communicated to committees of Congress, it will be enough to quote the language of Mr. Seward in a letter bearing date February 23, 1863,

addressed to the chairman of the Committee on Foreign Relations, with reference to the present case, as follows:

It has never been the opinion of the head of this Department that the law authorized any special compensation, other than their respective salaries or fees, to the commissioner or minister in Turkey, or to our consular officers in that country or its dependencies, for any services which they might be required to perform under the provisions of the twenty-second, twenty-third, and twenty-fourth sections of the act of August 11, 1848.

There are, however, two precedents of allowances by Congress in cases asserted to be similar to the present. The first is the case of D. S. Carr, minister at Constantinople, who is said to have been paid for similar services rendered in the same Kingdom, and about the same time. But a careful consideration of this case takes from it all character as a precedent. It appears that Mr. Carr, on his return from Turkey, in his accounts against the Government, made a claim for judicial services; but this item, with others, was rejected at the Treasury Department as not allowed by law. But at last an amendment was fastened upon the civil and diplomatic bill at the first session of the Thirty-second Congress which, it is asserted, covered the claim for judicial services. There is nothing in the language of the amendment as it finally passed which could give a hint of any such claim. It is as follows:

To compensate Dabney S. Carr for expenses incurred while in the diplomatic service of the country, to be allowed in the settlement of his accounts with the Government, $7,144. (10 Stat. L., 89.)

It is difficult to see how an appropriation in such general terms for expenses incurred can be made a precedent for an appropriation on account of alleged services. But the claim of Mr. Carr was on account of expenses, part of which were incurred anterior to the statute of 1848, so that, if it be recognized as a precedent, it must authorize an allowance of compensation for judicial services anterior to the statute as far back as the treaty with Turkey, in 1830, under which these judicial duties were first established.

The other precedent is that of D. S. McCauley, consul-general at Alexandria, a port within the territorial limits of the Turkish Empire, whose widow, after his death, was paid $4,260 for judicial services under the statutes of 1848. (11 Stat. L., 567.) The bill for this payment originated in the Senate; but when it is considered that it was in favor of a widow, its value as a precedent will not be such as to establish a rule for the Senate in all subsequent cases. It must be classed as a widow's bill.

The two precedents adduced in favor of the claim may be disregarded, at least so as to leave the question open to the judgment of the Senate.

If there were any doubt as to the meaning of the statute from an examination of its text, that doubt would be removed by a consideration of the consequences which would ensue from the interpretation which is given to it by the claimant. If his claim is valid, then will all other consuls in the ports of Turkey, at least from the date of the statute of 1848, if not from the date of the treaty with Turkey in 1830, be entitled to the same allowance. By the statute it is provided that "the word consul shall be understood to mean any person vested by the United States with and exercising the consular authority in any of the five ports in China named in the treaty, or in any port in Turkey." It is impossible, of course, to make any discrimination between

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the consuls at these "ports." What is just for one is just for all; nor can the allowance be limited in time. It must be made to our consuls at all these ports and for all the time since the statute if not since the treaty itself. Smyrna, Beirut, Candia, Cyprus, Alexandria, Tripoli, and Tunis can not in this respect be distinguished from Constantinople, nor can the present claimant be entitled to more consideration than his successors in office. Jerusalem, though a city of Turkey, is not a "port;" but there are vice-consuls or consular agents at Jaffa, Acre, Dardanelles, Trebizond, Rhodes, Gallipolis, all "ports" of Turkey. It is obvious that the payment of this claim would open the Treasury to other claims having the same foundation, whose sum total must be reckoned at many thousand dollars.

If the claim had been presented on the ground of services actually rendered, the case might have a different aspect. The evidence of such services might be urged to justify an appropriation according to the value of such services (quantum meruit), although it is difficult to see how any such services could be regarded as other than what the claimant was obliged to render in the discharge of his consular duties. But it does not appear from any of the papers in the case that any judicial duties were actually performed by the claimant, whose case is rested exclusively on the statute which, it is assumed, allows this additional compensation, even if no judicial duties have actually been performed. Mr. Seward, in his letter to the chairman of the committee, dated February 23, 1863, says that there is no evidence at the Department of State that these judicial services were actually performed by the claimant. His language is as follows:

The judicial services which these officers have been required to perform, certainly until a comparatively recent period. have been of rare occurrence; and there is nothing upon the records or files of the Department, as it is believed, to show that Mr. Dainese was ever called upon "to execute any of the provisions of the act so far as the same relate to crimes committed by citizens of the United States in Turkey."

After careful consideration of the case the committee are constrained to report the House bill back to the Senate with the recommendation that it do not pass.

THIRTY-EIGHTH CONGRESS, FIRST SESSION.

January 12, 1864.

[Senate Report No. 2.]

Mr. Sumner made the following report:

The Committee on Foreign Relations, to whom was referred the petition of Henry P. Blanchard, praying for compensation for services performed as marshal for the consular court of Canton, have had the same under consideration and report:

That after consideration of the case, the committee have adopted a report on this case, made by Mr. Sumner, in behalf of the committee, Februray 18, 1863, which has been acted upon in the Senate.

[See Senate Report 96, Thirty-seventh Congress, third session, p. 736.]

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