
    DAINESE’S CASE.
    Francis Dainese v. The United States.
    
      On the Proofs.
    
    
      The claimant is a subject of Austria, domiciled in Turkey. With the knowledge and implied assent of the Department of State, he acts as vice-consul at Constantinople. Subsequently the consul appoints another person vice-consul who acts as such, but is not recognized for a long time by the department. The claimant istiext appointed consul, and is notified that his commission will be sent to him at Constantinople. While on his -way there he is notified that his appointment has been revoked. Se does not reach his post nor qualify as consul. At the time there is no settled usage as to when a consul’s compensation should begin. The claimant is paid for all services as consular officer, except judicial duties.
    
    I.This court has jurisdiction of a claim for consular salary. It is not a claim “growing out of or dependent upon any treaty stipulation” within the meaning of Rev. Stat. § 1066. The statute contemplates a direct and proximate connection -between the treaty and the claim.
    II.The history of the usage that Franks while in Turkey shall he under the jurisdiction, civil or criminal, of their respective ministers or consuls examined and stated.
    III. This usage is a part of the international law of Europe.
    IV. The law of nations is a part of the common law, and forms a portion of our inheritance.
    V.That American consuls in Mahommedau countries exercise judicial powers is a part of the public law of this country, and is not dependent upon the text of a treaty.
    VI.When a treaty is promulgated in a given text, and Congress create an office for the performance of quasi-international duties under the treaty, the incumbent of the office is entitled to its salary irrespective of any diplomatic question as to the construction or validity of the treaty.
    VII.The word “consul” has two meanings. (1) It denotes an officer of a particular grade in the consular service. (2) It has a broader generic sense, embracing all consular officers.
    VIII.The history of the consular service, and particularly of the office of vice-consul, examined and stated.
    IX., In the absence of a statute prescribing the appointment of vice-consuls, they can only he appointed with the advice and consent of the Senate.
    
      X.Prior to tlie Consular Service Act, 1856 (11 Stat. L., p. 52), a vice-consul could not be appointed legally by the consul, i. e., without the advice and consent of tbe Senate; nor can such a person be regarded as having been the lawful incumbent of the office, though recognized as such by the Department of State; nor can he recover salary for judicial duties imposed upon him as vice-consul.
    XI.The Act lltk August, 1848 (9 Stat. L., p. 270), does not entitle consuls in Turkey to an additional compensation for the judicial duties which it imposes upon them.
    XII.A consul or vice-consul is not invested with the office until he gives the bond required by law; nor can he recover the salary of the office where he has neglected to give the bond.
    
      The Reporters’ statement of the case;
    The following are the facts of this case as found by the court:
    I. The claimant is a native of Pera, near Constantinople, and was domiciled there as an Austrian subject during the several occurrences hereinafter referred to. At and prior to September 25,1849, George A. Porter was the consul of the United States at Constantinople, and before that date had occasionally employed the claimant in tlie consular office.
    II. On that day said consul obtained leave of absence for six months, placed the consulate in claimant’s hands, and reported it to the Department of State in a dispatch in which he styled claimant “ my vice-consul.” No other appointment of claimant as vice-consul at Constantinople is shown. The Department of State never conferred upon the claimant a written appointment or authority to act as such vice-consul, and claimant never qualified as such vice-consul by giving bond with sureties as required by the sixth section of the act entitled “An act concerning- consuls and vice-consuls,1’’•approved April 14, 1792.
    III. On or about the same 25th September, said Porter left Constantinople for the United States, and the claimant took charge of the consulate and assumed to perform the duties thereof in the capacity of vice-consul of the U ni ted S tales. This was done with the knowledge of the legation of the United States at that place. When the facts came to the knowledge of the Department of State no objection was made, and the department continued to transact business with the claimant, he assuming to act as such vice-consul.
    
      IV. According to the usage in the Department of State at that time, the compensation of a person acting; temporarily in the capacity of consul during the absence of such officer from Ms post was provided for by such arrangement respecting the salary, fees, or emoluments of the office as might be agreed upon between the parties. From March 31,1849, to April 1,1850, the accounts of the consulate were rendered by the claimant to the government, but were settled at the Department of State and in the Treasury in the name of said Porter as consul, and said Porter drew for their amount.
    V. At the expiration of said Porter’s leave of absence he continued to reside in the United States. About April 1,1850, he was nominated to another office, and from that time until December 20,1852, the accounts of the consulate in the departments were kept in the name of the claimant. The duties of the consulate were performed by the claimant until about July 10, 1851, when one Henry A. Homes presented to the legation at Constantinople a paper executed by said Porter, who had not then resigned his said office or been removed therefrom, which said paper was as follows:
    “I, George A. Porter, consul of the United States at Constantinople, do hereby appoint Henry A. Homes, of the United States legation, to receive from F. Dainese, formerly United States vice-consul, the books, archives, and such other property as may belong to said consulate; and I do hereby empower him to execute and perform all the duties appertaining to said office. In testimony whereof I have hereunto, in the city of Baltimore, this 28th day of March, A. D. 1851, placed my signature.
    “Geo. A. Pouter.”
    The said legation thereupon recognized said Homes as vice-consul, and caused the archives to be removed from the custody of the claimant. From that time forward the claimant performed no duties pertaining to the said office of vice-consul; but .the said Homes was not recognized as a consular officer of the United States in any department for any period prior to December 20, 1852.
    VI. The President having nominated the claimant to the Senate as consul of the United States at Constantinople, and the Senate having given their advice and consent thereto, he was commissioned as such consul February 26, 1852. At that time be was not in Constantinople. The Secretary of State addressed to him the following letter, March 19, 1852:
    “ DEPARTMENT 01? STATE,
    “ Washington, 'March 19,1852.
    “ SiE: The President, by and with the advice and consent of the Senate, having' appointed you consul of the United States for the port of Constantinople, I transmit to you a printed copy of the general instructions to cousuls, to the first and second chapters of which your immediate attention is called; a form of the consular bond; and other documents tor the use of your consulate, óf Avhich a list is subjoined. Among them willbe found a circular of July 30,1840, which contains a copy of an act of the 20th of that month not embodied in the instructions, and with the provisions of which it is important you should be fully acquainted.
    “ Your commission will be sent to the legation of the United States at Constantinople, with instructions to apply to the Turkish Government for the usual exequatur, which, when obtained,, will be forwarded to you with the commission.
    “ You will communicate to the department the name of the State or country in which you were born, and if you have ever resided in Constantinople.
    “ I am, sir, &c.,
    “Daniee Webster.
    “ FRANCIS Daikese, Esq.,
    “ Appointed Consul of the United States for the port of Constantinople
    
    VII. The claimant being en route to his post, the Department of State, May 3, 1852, addressed to him the following letter:
    “DEPARTMENT OP STATE,
    “ Washington, May 3, 1852.
    “ Sir : I inclose herewith a communication received from the Secretary of the Navy in reply to the letter of this department, requesting that a vessel of the United States should convey you to your post at Constantinople. The Navy Department has been pleased to acquiesce in the wish expressed by this department, and to say that the necessary instructions have been given to Commodore Stringham to hold one of the vessels in readiness to receive you on board at Spezia, Naples, or such other port as may be indicated by you, and convey you to Constantinople.
    “ In accordance with the desire verbally expressed by you to this department, the Navy Department has been informed that it would be agreeable to you to embark at Naples about the 15th of June, if such period should suit the convenience of the department to have a vessel at that point.
    “I am, sir,
    “ W. Hunter,
    
      u Acting Secretary.
    
    “Francis Dainese, Esq.,
    “ United States Consul, Constantinople.”
    
    VIII. On or about the 28th October, 1852, the Secretary of State addressed the following letter to the claimant:
    “DEPARTMENT OR STATE,
    “ Washington, October 28, 1852.
    “Sir: From information communicated to this department, through a reliable source, that an application to the Turkish Government for an exequatur in your favor would not be attended with a favorable result, as well as from other considerations of a character sufficiently important to make such a course necessary, I am directed by the President to inform you, which 1 now do, of his revocation of your commission as United States consul at Constantinople.
    “I am, sir, &c.,
    “ü. M. Conrad,
    “ Acting Secretary.
    
    “F rancls Dainese, Esq.,
    “ United States Consulate, Constantinople.”
    
    The claimant received said last-named letter on the 20th December, 1852, while he was still en route to his post. He never went to his post as consul, and never qualified as counsel by giving bond as required by said act of 1792. It does not appear that while he was in charge of the consulate, from September 25, 1849, to July 16, 1851, he performed any judicial duties. After July 16, 1851, he was not at the consulate.'
    IX. At the time when these events took place there was no settled usage at the Department of State respecting the time when the compensation of consuls should begin. It was sometimes held that a consul was entitled to his compensation from the date of his commission, and sometimes from the date of his entry upon the discharge of the duties of his office. It was also then sometimes held at the Department of State that a vice-consul could not perforin judicial acts, and could not be paid the compensation allowed for that purpose; and it was also repeatedly held that a vice-consul could perform such duties, and compensation for such performance was repeatedly allowed and paid to vice-consuls.
    
      X. Tbe claimant, lias been paid in full for bis services and' disbursements in every form as a consular officer of tbe United States at Constantinople; but be has not been paid for tbe performance of any judicial duties which may have been imposed upon him either by the treaty of May 7, 1830, between, the United States and the Ottoman Porte, or by chapter CL of the acts of the first- session of the Thirtieth Congress, approved August 11, 1848.
    
      31 r. John I). JhTherson for the claimant.
    
      Mr. Assistant Attorney-General Simons (with whom was Mr. IV. H. Bradley) for the defendants:
    The treaty provides for trial of criminal eases by the minister or consul, and claimant was neither. He was not consul, because, although nominated and confirmed, his commission was not signed by the President, and he was notified that his appointment was revoked while he "was on his way to Turkey. Of course he never received an exequatur, nor did he give the bond required by law before he could enter on the duties of the office. (1 Stat., 250, § 6; Marburg v. 3fadison, 1 Cr., 49; United States v. Le Baron, 19 How., 78.)
    He was not vice-consul, because never appointed such by the President with advice and consent of the Senate, which, prior to the Act August 18, 1850 (11 Stat., 52), was the only lawful method of appointment. (Const., Art. 2, § 2; 7 Op. Attys. Gen., 247.)
    . Even if lawfully appointed, he never fulfilled the statutory condition precedent of filing a bond j and if he had, he could not, under the treaty, exercise judicial power. The consul could not delegate his power, nor could the statute of 1848 vest it in contravention of the treaty; at least the court will not presume an intent to do so, especially when the minister and consuls (the same officers mentioned in the treaty) are required to execute the statute in conformity with the treaty (section 22), and when the twenty-third section can be otherwise construed.
    If usage of the State Department has any bearing on the controversy, it appeal's the usage was to consider a vice-consul, so far as respected his compensation, the mere employe of the consul who appointed him, and to whom he had to look for such pay as was agreed on privately between them for his services.
    
      Tbe consul wbo employed bim removed him and appointed Henry A. Homes in bis stead, wbo actually performed tbe duties of tbe office from July 1,1851, to and after December 20, 1852, Avitb tbe knowledge of tbe State Department.
    No express recognition of tbe claimant’s appointment as vice-consul appears; and under the treaty, not being a citizen of tbe United States, be was not eligible.
   Davis, J.,

delivered tbe opinion of the court:

This is an action to recover salary. Tbe claimant contends that be was a duly appointed consular officer of tbe United States, although not a citizen thereof at tbe period sued for, and that by reason of having bad judicial duties imposed upon bim be became entitled to tbe extra pay allowed by the Act August 14, 1848 (9 Stat. L., 276), to certain consuls peiforming such duties.

The Attorney-General first contends that the court is without jurisdiction in this case. As our jurisdiction may not extend to claims “ growing out of or dependent, on any treaty stipulation •entered into with foreign nations” (Rev. Stat., 1066), and as without tbe treaty with China there would have been no such act as tbe act of August 14, 1848, and without tbe treaty of 1830 with the Ottoman Porte there would have been nothing for tbe twenty-second section of that act to attach to, it is argued that tbe present claim grows out of a treaty and is bejrond our jurisdiction. We think that tbe connection between tbe claimant’s demand for salary and tbe treaty, by virtue of which tbe office to which tbe salary is supposed to attach is alleged to -exist, is not tbe direct and proximate connection which the statute contemplates. About forty treaties are now in force by which it is agreed that tbe United States may maintain consuls in tbe territories of as many independent powers; but it cannot be seriously contended that this court lias no jurisdiction over the demands of those consuls for salaries, because their consulates grow out of or depend upon treaties with foreign nations.

The Attorney-General also calls attention to a difference between tbe United States and the Ottoman Porte as to tbe construction of the treaty of 1830, which be contends is a question for tbe political department of the government. He maintains that it is necessarily involved in the exercise of jurisdiction in this case, and that, therefore, we should stop at the threshold.

. The fourth article of that treaty, as printed in the Statutes at Large, provides that when American citizens within the dominions of the Ottoman Porte may have committed some offense 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 offense, following, in this respect, the usages towards other Franks. (8 Stat. L., 409.) The Turkish ■Government denies the authenticity of the English text, and claims that the terms of the original Turkish text, which, they .say, was accepted by the American negotiator to be strictly observed on all occasions, does not affect the rights of the Turkish GoAmrnment with respect to the preventive arrest and holding-in custody of foreign subjects during criminal proceedings of which they may be the objects, and that it accords to Americans the same privilege which the subjects of other powers already enjoyed, viz, as they say, the leaving to the minister or consul the execution of the punishments to which Americans may be condemned in case of crimes or offenses. (United States Consular Regulations, ed. 1870, pp. 192, 193.)

The “usages of the Franks” begin in what are known in international law as “the capitulations,” granting- rights of ex-territoriality to Christians residing- or traveling in Mohammedan countries. Some ingenious writers attempt, to trace these capitulations far back of the capture of Constantinople in 1453 by the Turks. (1 Féraud-Giraud, Juridiction Francaise dans les Échelles, 29 et seq.) They are undoubtedly rooted in the radical distinction between Mohammedanism, which acknowledges the Koran as the only source of human legislation and the only law for the government of human affairs, and the western systems of jurisprudence, which are animated by the equitable and philosophical principles of Roman law and Christian civilization. But their accepted foundation in international law is in the 'Treaty made with the French in 1535, which guaranteed that French consuls and ministers might hear and determine civil and criminal causes "between Frenchmen without the interference of a Cadi or any other person. (1 De Testa, 16.) After this treaty the French took under their protection persons of other nationalities not represented by consuls (2 Féraud-Gi-raud, 76), and hence the generic name of “Franks” was given to all participants in the privileges, and has been preserved in the laws, treaties, and public documents of the United States. (8 Stat. L., 409; 12 Stat. L., 76, § 21; 7 Op. Attys. Gen., 568.)

Other nations followed the examples thus set by the French, as, for instance, the English in 1675 (Brit. & For. St. Pap., 1812-’14, Part I, 750); the Two Sicilies in 1740 (1 Wenckius,. 522); Spain in 1782 (3 Martin’s Rec., 2d ed., 405); and the United States in 1830 (8 Stat. L., 408). All writers agree that by these and other similar capitulations a usage was established that Franks, being in Turkey, whether domiciled or temporarily, should be under the jurisdiction, civil and criminal, of their respective ministers and consuls. This usage, springing thus not only out of the capitulations, but out of the “very nature of Mohammedanism” (3 Phil., preface, iv), became a part of the international law of Europe (note to Spanish treaty cited above; 1 Guide Dip., § 75; Wheat. El., Lawrence’s ed. of 1863, 219-’22, Dana’s ed., § 110; 2 Phil., § 273; 1 Vattel, Pradier Fodéré ed., 625 n.; Bluntschli, Dr. Int. Cod., § 269; Calvo, Dr. Int., § 495).

In the ease of Triquet v. Bath (3 Burrows, 1478), which was argued by Blackstone, Tlmrlow, and Dunning, and decided in 1764 by the King’s Bench, Lord Mansfield giving the opinion, it was held to be beyond doubt that the law of nations is part of the common law of England; and that it is to be collected from the practice of different nations and from the authority of' writers. Blackstone incorporated this doctrine into his commentaries (Bl. Com., Book 4, ch. 5), which were first published soon after the decision was rendered. (See also Novillo v. Toogood, 1 B. & C., 562.)

That the law of nations forms part of our inheritance is a familiar doctrine, recognized by the highest tribunal. (30 Hogs-Sugar v. Boyle, 9 Crunch, 191.) The political department of the government has also uniformly insisted that persons under the protection of the United States shall enjoy in foreign lands all the rights, privileges, and immunities to which the law of nations entitles any foreigner. (Martin Kosta’s Case and many others.) Attorney-General Cushing, applying this doctrine, held it to be undoubted that all Franks were absolutely exempted, in controversies among themselves, from the local jurisdiction of the Porte (7 Op. Attys. Gen., 568), and the Supreme Court has recognized the general doctrine that consuls in Mohammedan countries are clothed with judicial powers, as part of the public law of the United States. (Mahoney v. The Unite States, 10 Wall., 66.)

At the close of the Crimean war the Ottoman Empire was for the first time formally admitted into the family of nations. (Art. VII, Tr. of Peace, 3 Phil. Int. Law, 814.) It seems to have been thought that some further provisions as to the capitulations might become necessary (see Protocols),-but no steps were taken, and foreign consuls have continued to enjoy exterritorial jurisdiction (Dainese v. Hale, 91 U. S., 13; 2 Féraud-Giraud, preface), except in Egypt.

In the latter province the different systems of law which were thus enforced produced practical inconvenience and frequent conflict of jurisdiction. At length the Khedive, with the assent of the Sultan and of the different powers, promulgated a code for the regulation of the rights of foreigners in Egypt (Codes Egyptians, Alexandrie, 1875), and organized a mixed tribunal to administer that code. Congress, in 1874, authorized the President to suspend the operation of the act conferring judicial jurisdiction on ministers and consuls, so far as it affected Egypt, and to notify the Porte and the Khedive of the provisional acceptance of the new system. (18 Stat. L., 23.) This was done. The President then named three citizens of the United States for aiqjointment as judges in the new court. The Khe-dive, the Sultan assenting, appointed the nominees, and they are now serving there.

In view of all this, while we refrain from considering which text of the treaty of 1.830 is valid in our international relations, or Avhat is the true construction of either text, we can have no doubt that, at the time of the claimant’s alleged service, a con-sulaf office in Turkey was regarded as calling for the possible exercise of judicial functions. This may have been am element in influencing appointments, and a motive in inducing the acceptance of office. When a treaty, after acceptance by the Senate and exchange of ratifications, is promulgated in a given text which, so far as it relates to a general principle of public law, is in harmony with the opiniou of all publicists, and the legislature creates an office for the performance of quasi-international duties under that treaty and attaches a salary to it, and the President duly fills the office, and the incumbent takes possession of it, the latter is entitled to the salary, irrespective ■of any diplomatic question as to tbe construction or validity of the treaty.

We therefore overrule the objections to our jurisdiction, and proceed to inquire whether the claimant held an office to which a salary was attached for the performance of judicial duties and whether he is entitled to such salary.

The alleged service extends over four distinct periods. During three of them the claimant, with the knowledge and implied assent of the Department of State, asserted Ids claim to be a vice-consul of the United States, by virtue of an appointment from the consul at Constantinople. During the fourth period he held the President’s commission as consul at Constantinople, and was en route to his post. With the view we take of the ■case, it is unnecessary to distinguish more particularly between the different periods.

It is contended at the outset that so much of the claim as relates to the alleged service as vice-consul cannot be maintained. It is said that inasmuch as the third article of the treaty of 1830-provides for the appointment of both consuls and vice-consuls, and the fourth article provides for the exercise of judicial powers by consuls and is silent as to vice-consuls, therefore it could not have been intended that vice-consuls should act as judges.

The argument rests entirely upon the language of the treaty; for the statutory provisions for executing the treaty clearly invest not only a vice-consul, but every consular officer who may be duly empowered by the Department of State and duly recognized by the Porte, with all the judicial powers authorized by the treaty. (9 Stat. L., pp. 279, 280, §§ 22, 23.) To that extent, therefore, Congress has construed the word “consul” in the fourth article of the treaty as a generic term; and the construction is reasonable and just. The word “ consul ” has two meanings. In its more limited sense it denotes an officer of a particular grade in the consular service; but in the second article •of the Constitution, authorizing the President to appoint consuls ; and in the third article, extending the judicial power to ■cases affecting consuls ; and in the statute of 1848, which we have been considering; and in the act of June 22, 1860, which replaced it (12 Stat. L., 72); and in the general instructions to consuls (Consular Regulations, passim); and in many treaties (Argentine Rep., 10 Stat. L., 1005; China, 16 Stat. L., 739; Madagascar, 15 Stat. L., 491; Morocco, 8 Stat. L., 484; Nicaragua, 15 Stat. L., 549; Siam, 11 Stat. L., 683; Tripoli, 8 Stat. L., 214; Tunis, 8 Stat. L., 157) the word is used in a broader generic sense, and denotes all consular officers of whatever grade. This is its signification as employed in the fourth article of the treaty of 1830.

It is next urged that, prior to the year 1856, Congress had^ enacted no statute vesting the appointment of inferior consular officers in the President alone; that at the time of the alleged service a nomination to the Senate and confirmation by that body was necessary in order to entitle a person to hold the office of vice-consul of the United States; and that the claimant, not having' been thus appointed, was not a lawful incumbent of the office he claimed to hold.

The consular system of the United States originated in the treaties with France prior to the adoption of the Constitution. In the twenty-ninth article of the treaty of 1778 “ the two contracting parties grant mutually the liberty of having each in the ports of the other consuls, vice-consuls, agents, and commissaries, whose functions shall be regulated by a particular agreement.” (8 Stat. L., 28.) The “particular agreement” thus provided for is to be found in the consular convention of 1788, negotiated by Mr.'Jefferson. That convention having been concluded under the Confederation, and ratified and proclaimed under the Union, is entitled to weight in considering the Constitutional question suggested by the Attorney-General. Its first article provided that the consuls and vice-consuls of each party should be commissioned according to the forms respectively established by each, and should receive exequaturs from the other party. The third article authorized the respective consuls and vice-consuls to establish agents in the different ports and places in their departments. Nothing farther was said of commissaries. The word seems to have been adopted from an earlier treaty with Sweden (8 Stat. L., 74, Art. XXVI), and, with the exception of the treaty of 1832 with Iiussia (8 Stat. L., 448, Art. VIII), it disappears in subsequent treaties and legislation. As to vice-consuls, which is all we need consider, the treaty contemplated that they were to bear some form of commission and to receive exequaturs..

The twenty-fourth chapter of the acts of the Second Congress (1 Stat. L., 254) was enacted in part “ for the carrying into full effect the convention” of 1788 (§1), and in part “ for the direction of the consuls and vice-consuls of the United States ” (§2). It contains no provisions respecting any consular officer except consuls and vice-consuls. It authorizes those officers to take charge of the estates of citizens of the United States dying within their districts, to administer upon them, and to charge and collect general fees; and it requires them, before entering upon the discharge of the duties of their office, to give bond for the faithful discharge of its duties, and for the accounting for money and property which may come into their hands by virtue of the act.

Until 1855 ho statute directed the appointment of consular officers of other grades. Yet officers of other grades did exist before that time, and were indirectly recognized by law. The revenue act of 1799 (1 Stat. L., 690), for instance, refers to the acts of consuls and agents; the act of 1803 supplementary to the act of 1792 (2 Stat. L., 203) assumes that there may be in the service consuls, vice-consuls, commercial agents, and vice-commercial agents; the customs law of 1823 (3 Stat. L., 737) provides for the verification of an invoice before a consul or a commercial agent; the law of 1835 relating to false invoices (1 Stat. L., 773) follows the act of 1803; the act of 1840 (5 Stat. L., 395) seems to assume that a consul and a commercial agent may be appointed to reside at the same port, the commercial agent being empowered to act in the absence of the consul; and the act of 1855 (10 Stat. L., 621), on the contrary, authorizes the appointment of an officer to be styled both consul and commercial agent. The act of 1856 (11 Stat. L., 52) first brought order out of this chaotic, crude, and to some extent contradictory legislation; separated the consular service into distinct grades; defined the powers, duties, and compensation of each; and pro-' vided a mode for the appointment of each. It is therefore quite clear that Congress, prior to 1856, did not attach definite ideas and significations to the terms which it used in order to describe grades in the consular service.

The executive departments were equally lax and vague. In 1790 Mr. Jefferson, as Secretary of State, addressed a circular to consuls and vice-consuls, in which he defines his ideas as to the distinction between those officials, and as to the powers of both over agents. He says:

“Our government thinks that to whatever there may be of honor or profit resulting from the consular office, native citizens are first entitled, where such of proper character will undertake the duties; but where none such offer, a rice-consul is appointed of any other nation. Should a proper native come forward at any future time, he will be named consul; but this nomination will not revoke the commission of vice-consul; it will only suspend his functions during; the continuance of the consul within the limits of his jurisdiction, and on his departure therefrom it is meant that the vice-consular authority shall revive, of course, without the necessity of a reappointment. It is understood that consuls and vice-consuls have authority, of course, to appoint their own agents in the several parts of their district, and that it is with themselves alone those agents are to correspond.” (3 Jefferson’s Writings, 188.)

It thus appears that at that time consuls and vice-consuls were regarded as independent officers. There might or there might not be a consul in the district of a vice-consul; but the two officers could not exercise the powers of their offices at the same time in the same district. Hence, as Attorney-General Gushing has remarked (7 Op. Attys. Gen., 247), it was the practice in the early history of the government to appoint vice-consuls by nomination to the Senate. The record in this case shows how great innovations’ had come to be made on this usage. Th e Department of State is found to be recognizing as vice-consuls persons named and appointed by consuls, serving in the consulate contemporaneously with the consuls themselves, without warrantof appointment from the department.

We are constrained to think that the early practice was in harmony with the requirements of the Constitution, and that, in the absence of law authorizing a departure from that practice, it should be .followed. The claimant, having been appointed vice-consul without the approval of the Senate, is not entitled to be regarded as the lawful incumbent of the office, and cannot recover, on the facts in this suit, any salary for judicial duties alleged to be imposed upon him as vice-consul, even if it be granted by the act of 1848, which we shall soon consider.

The Attorney-General objects to his right to recover the remainder of his claim, because he was not at his post during the time that he held the President’s commission as consul, and performed no judicial duties.

Before the act of 1855 there was a want of uniformity in the usage of the Department of State respecting compensation of consuls. They were sometimes paid from the date of the commission, and sometimes from the date of the entry upon the discharge of the duties of the office. In 1855 Congress inaugurated tlie system of salaried consulates, and enacted that no consul should be entitled to compensation before reaching his post and entering upon his official duties. (10 Stat. L., 623, § 6.) This provision was repeated in the act of 1856 as to consular officers of classes B and C in that statute; but as to officers of class A, which embraces most of the Oriental consulates, a different rule was established and is still in force. (11 Stat. L., 56, § 8.)

in the absence of law or usage, we should be disposed, on the facts of this case, to allow the claimant compensation from the date of his commission if he were entitled to any compensation under the statute. But the Attorney-Gfeneral contends further, and, as we think, correctly, that the Act August 11, 1848 (9 Stat. L., 276), does not entitle consuls in Turkey to an additional compensation for the judicial duties which it imposes upon them.

The first seventeen sections impose upon the consuls in China a variety of judicial duties, both civil and criminal. The eighteenth section provides that in consideration of the duties both civil and criminal thus imposed upon the “ said consuls,” that is, upon the consuls in China, there shall be paid to each annually the sum of one thousand dollars in addition to his salary.

Tn the twenty-second section the provisions of the said act, “so far as the same relate to crimes committed by citizens of the United States ” — that is, the provisions of the first seventeen sections, so far as they relate to criminal, but not so far as thejT relate to civil jurisdiction — are extended to Turkey. But no provision is made for the extension of the provisions of the eighteenth section to the consuls in Turkey, because the consideration which is declared to have moved Congress to make the provision for the consuls in China failed in Turkey. The onerous civil litigations imposed upon the former were not imposed upon the laiiter, and the criminal cases were not regarded as sufficiently burdensome to call for an increase of pay.

Congress in two ways gave a contemporaneous construction of the act of 1848. 1st. In all the annual appropriations before the act of 1855 the additional pay of $1,009 each was granted to the minister and consuls in China, and none to the minister or consul in Turkey. 2d. Before 1849 it was the custom to make an annual appropriation for interpreters, guards, and expenses of the consulates at Constantinople, Smyrna, and Alexandria. In 1849 salaries were, in addition, attached to the consulates at Alexandria and at Bey rout,; and these appropriations for expenses and salaries were annually repeated until the passage of the act of 1S55. The fact that appropriations were thus made for judicial pay in China and none in Turkey, and that other provisions were made for the Turkish consulates, furnishes proof conclusive to our minds that Congress did not regard the act of 1848 as endowing- the Turkish consulates with a judicial salary.

One other and the last point raised by the Attorney-General is equally fatal to the claimant, viz, that he furnished no bond, either as consul or as vice-consul, as required by the act of 1792.

“When a person has been nominated to an office by the President, confirmed by the Senate, and his commission has been signed by the President, and the seal of the United States affixed thereto, his appointment to that office is complete. Congress may provide, as it has done in this case, that certain acts shall be done by the appointee before he shall enter on the possession of his office under his appointment. These acts then become conditions precedent to the complete investiture of the office.” (The United States v. Le Baron, 19 How., 78.)

This language of the Supreme Court settles the point under consideration. If such conditions were precedent to the complete investiture of an office held by virtue of the President’s commission, they were still more so to the investiture of an office enjoyed by the acquiescence of the Department of State.In each ease the condition was not complied with by the claimant. Therefore he was not invested with either office so as to entitle him to recover any salary which, may have been attached to it, even if motives of public policy should induce an executive department or a court to give validity to his official acts.

The petition must be dismissed.  