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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 authorizedto 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 nerein 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, 1818.
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 1818, 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 1818. (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 1818, 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
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.]
THIRTY-NINTH CONGRESS, FIRST SESSION.
[See p. 726.] April 5, 1866.
[Senate Report No. 58.] Mr. Sumner made the following report:
The Committee on Foreign Relations, to whom was referred the petition of James G. Clarke, have had the same under consideration, and now submit the following report:
Toward the close of the summer of 1856 Hon. J. J. Seibels, then minister resident of the United States in Belgium, received from the Department of State permission to quit his post for a leave of absence at home, provided he should find a citizen of the United States competent, in all respects, to fulfill the duties of the mission during this period, to whom he was by the Department authorized in advance to transfer the seals of the legation, the choice of the person being left, as is customary, to the judgment of the minister. Mr. Seibels appointed for this purpose Mr. Clarke (giving his reasons for so doing in a dispatch dated September 18, 1856), an American gentleman, who had already passed several months in Brussels, and whom he had previously induced to accept an unpaid attachéship, in which connection Mr. Clarke had already rendered various service to the mission, especially from his facility in speaking and writing the French.
Thus authorized by the Department of State, the minister resident undertook, in taking leave of the minister of foreign affairs in Belgium, on the 18th September, 1856, to present to him Mr. Clarke as the duly appointed chargé d'affaires ad interim, placing him, by this act, in official relations with the Government of the King. On the same day the archives and property of the legation were comunitted to his care by the minister, and Mr. Clarke assumed the responsibility of the rent of the furnished house which had been occupied by him, and by his predecessor, as the residence of the legation. Immediately after this Mr. Seibels left for the United States, assuring Mr. Clarke that on his arrival in Washington he would at once procure an official sanction of the appointment by the Secretary of State (Mr. Marcy), and accordingly, after an interview with the latter, wrote to Mr. Clarke to say that the Secretary had sanctioned the appointment, with the assurance that he should be recognized as chargé d'affaires. With this understanding Mr. Seibels continued his journey to Alabama, where he spent the leave granted him, and procured its extension to the 11th June, 1857, when, in place of returning to his post, he sent in his resignation. Mr. Marcy, in the meanwhile, overlooked the confirmation of the appointment which, it is understood, he had approved; while Mr. Clarke, sensitive about his position, sought, through the minister in Alabama, to remind the Secretary of his omission. The neglect was not, however, repaired in the last months of Mr. Marcy's service, nor did it receive the attention of Mr. Cass during his three months of office which preceded the 11th of June, 1857, when Mr. Seibels's resignation left Mr. Clarke to await by every mail, for a period of fifteen months, the announcement of his successor.
The President, however, failed to name anyone until the autumn of 1858, so that Mr. Clarke, expecting weekly to be relieved and to return to the United States, deferred offering any demand for salary until he should know the duration of his period of service.
When he reached Washington, in January, 1859, he was informed by the Department of State, and very unexpectedly to himself, that,
as no confirmation of the appointment had been made, he had only to address himself to Congress, which he immediately did. Mr. Mason, then chairman of the Committee on Foreign Relations, on referring to the Department of State for the facts in the case, received an answer from the Secretary, Mr. Cass, which closes as follows:
While the propriety of granting to Mr. Clarke the compensation he claims is left entirely to your committee, I deem it but justice to that gentleman to express the conviction that he performed the duties assigned to him by Mr. Seibels faithfully and creditably, during the period specified in his memorial, which, in accordance with your request, is herewith returned.
A letter addressed at this period by the minister, Mr. Seibels, to Mr. Cass, will show both the character of the service rendered by Mr. Clarke, and Mr. Seibels's appreciation of them. He writes (January 17, 1859) as follows:
Upon granting me leave of absence from my post at Brussels, as minister resident of the United States, in the autumn of 1856, your predecessor instructed me to be careful to leave the property of the legation in safe hands. There being no consul of the United States at Brussels, and our countrymen requiring daily official attention, it seemed to me indispensable that the legation should be kept open for their benefit, if for no other purpose. Fortunately, at the time I had attached to it, and acting as secretary, a gentleman whose education, intelligence, and high character fully commended him to me as a most suitable person to take charge of the seals of the legation, for, as I then supposed, but a brief period. This was Mr. James G. Clarke, whoin I now commend to your favorable consideration.
He is a gentleman of the highest attainments, speaking with the ease, fluency, and accuracy of a native French, German, and Italian-in fact, most of the continental languages.
I have the best evidence before me that he discharged the duties during the time the legation was in his care, a period of two years, with signal success, both as regards his intercourse with the Belgian Government and our own countrymen.
Upon my arrival at Washington, in October, 1856, I acquainted Mr. Marcy of the manner in which I had disposed of the legation, and he gave it his sanction, and said that Mr. Clarke should be recognized in the capacity I left him; that is, chargé d'affaires ad interim. Whether this has been done or not I do not know; but such are the facts, and I so informed Mr. Clarke at the time.
He now claims compensation of the Government for his services during the period he had charge of the legation and its property, and upon every principle of justice and equity I think him entitled to it; and, as I have been instrumental in his employment for the public service, I feel an interest that the Department should bring his claims to the favorable notice of Congress and recommend the necessary compensation.
Mr. Clarke, obliged soon after to return to Europe, in May, 1859, thus left his petition in the hands of Mr. Mason, not doubting that, for services rendered during a period of over two years, and for outlays much greater in an official position than he would have incurred as a private person, he would be promptly remunerated and reim
But Mr. Mason, occupied, possibly, with graver matters, neglected the interests thus intrusted to him, so that Mr. Clarke, when he again returned to the United States, was forced to offer a second petition to Congress, presented a year ago.
A note was on this occasion addressed to the Secretary of State, requesting the facts, to which Mr. Seward replied as follows:
From a reference to the files of the Department, it appears that the statements in the memorial, which is herewith returned, are entirely correct, with the exception of a slight inaccuracy, which, in justice to the memorialist, it is deemed proper to mention, namely, that his period of service was extended to the 27th instead of the 3d of September, 1853, the former being the date at which the successor of Mr. Siebels assumed the duties of the legation at Brussels, and on which Mr. Clarke relinquished them. The Departinent has beretofore borne testimony to the faithful and creditable manner in which the duties assigned him by Mr. Seibels were performed by Mr. Clarke during the entire period of his service, and his claim for compensation, as now presented, would appear to be equitable and entitled to the consideration of Congress.