
    DAINESE vs. HALE.
    At Law.
    No. 9615.
    I. The treaties between the United States and Turkey, together with the act of Congress of July 22, 1860, authorize our ministers and consuls in Egypt to exercise judicial powers over American citizens in that country, in civil as well as criminal matters.
    II. In actions of tort for injury to goods, it is material to allege in the declaration the number, quantity, and value thereof, as near as may be.
    STATEMENT OP THE CASE.
    This is an action of tort, and the plaintiff alleges in the declaration that the defendant, on and after September 17, 1861, was consul-general of the United States in and for the country of Egypt; and that in abuse of his power defendant took cognizance of a certain controversy between plaintiff and Bichard H. and Anthony B. Allen, citizens of, and residing in, the United States, and that neither plaintiff nor the said Allens were then within the Turkish dominions; and that said defendant did, under a pretended order obtained by himself, seize, take, and distrain the goods, wares, and merchandise of plaintiff, and did issue a pretended process of garnishment, which prevented the collection and settlement of claims, credits, and choses in action belonging to plaintiff, for the space of 1,160 days, whereby said goods and merchandise were greatly damaged and lessened in value, and said credits and rights in action irretrievably lost.
    There is also a count for converting the same, and the plaintiff estimates his damage at $125,000.
    The second plea of defendant to this declaration sets up that, as consul-general, by the laws of the United States, he was invested with judicial functions and powers over ci tizens of the United States in said country of Egypt; and in the exercise of such judicial power he took cognizance of said cause, and that said Daiuese having a store of goods then in Egypt, he issued the order of attachment complained of; and that for such exercise of judicial functions he is liable to the United States and the laws thereof, and not to the plaintiff.
    To this plea the plaintiff demurred on the ground that the defendant had no such powers as those set up in the plea, either by the laws of nations or by the laws of the United States; and that, in committing the grievances complained of, he exceeded his authority and acted maliciously.
    The circuit court overruled the demurrer, and from this decision the plaintiff appealed to the general term.
    This case requires an examination of the treaties which have been negotiated between the United States and the Ottoman Porte. The first was ratified on the 7th of May, 1830, and the second, which is the one now in force, on the 25th February, 1862. The fourth article of the treaty of 1830 was the only portion particularly discussed at the argument as defining the jurisdiction of American consuls, and reads 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 500 piasters shall be submitted to the Sublime Porte, to be decided according to the laws of equity and j ustice. Citizens of the United States of America, quietly pursuing their commerce, and not being charged or convicted of any crime or offense, shall not be molested; and even when they 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 th e usage observed toward other Franks.” (8 Stat. at Large, 409.)
    And the first article of the treaty of 1862 confirms all former rights and privileges conferred on citizens of the United States, and then declares:
    “ It is, moreover, expressly stipulated that all rights, privileges, or immunities which the Sublime Porte now grants, or may hereafter grant to, or suffer to be enjoyed by, the subjects, ships, commerce, or navigation of any other foreign power, shall be equally granted to, and exercised and enjoyed by, the citizens, vessels, commerce, and navigation of the United States of America.” (12 Stat. at Large, 1217.)
    The 20th article provides that this treaty shall extend to? and receive execution in, Egypt. These treaties, it will thus be seen, extend to citizens of the United States in Egypt all the rights, privileges, and immunities there granted, or hereafter to be granted, to the citizens of other foreign nations, and this stipulation necessarily involves a consideration of the rights and privileges which Turkey has conceded to the consuls of other Christian powers, resident within her dominions-These rights are defined by treaties, which show that such consuls exercise both civil and criminal jurisdiction over their countrymen to the exclusion of the local tribunals. This difference of the powers of consuls in Christian and Mohammedan countries is now recognized and sanctioned by commentators on the laws of nations. The United States have-negotiated treaties with other nations, which, like Turkey, do not profess the Christian religion, viz : China, Persia, Siam, and Japan, all of which provide that American citizens shall be subject to the jurisdiction of the authorities of their own Government, without interference on the part of the native magistrates; and an act of Congress was approved July 22, 1860, (12 Stat. at Large, 72,) which, in express terms, invests ministers and consuls “with all the judicial authority necessary to execute the provisions of such treaties, respectively, * * * which jurisdiction shall embrace all controversies between citizens of the United States;” and the fourth section provided that such jurisdiction in civil and criminal matters shall, in all cases, be exercised and enforced in conformity with the laws of the United States, as far as such laws are suitable, and when these are not adapted to' the object, the common law, including equity and admiralty, shall be extended over such citizens, and if these are deficient, the minister shall, by decree and regulation, furnish remedies which shall have the force of law.
    The following sections, from five to twenty, inclusive, require ministers to prescribe forms of process to be used by the consuls; the mode of trial; the punishment to be inflicted; make it the duty of consuls to encourage the settlement of controversies by mutual agreement, or by arbitration ; regulate fees, &c. Then comes the twenty-first section, which, is as follows:
    “ Section 21. That the provisions of this act, so far as the same relate to crimes and offenses 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 Ottoman dominions in conformity with the provisions of said treaty, and of this act, by the minister of the United States and the consuls of the United States (appointed) to reside therein, who are hereby ex officio vested with the powers herein conferred upon the minister and consuls in China, for the purposes above expressed, so far as regards the punishment of crime, and also for the exercise of jurisdiction in civil cases wherein the same is permitted by the laws of Turkey, or its usage in its intercourse with the Franks or other foreign Christian nations.” (12 Stat. at Large, 76.)
    The construction which our Government places upon our treaties with the Ottoman Porte is thus stated in the Consular Manual, a work published under the auspices of the State Department:
    “As to all civil affairs to which no subject of Turkey is a party, Americans ar.e wholly exempt from the local jurisdiction ; and in civil matters, as well as criminal, Americans in Turkey are entitled to the benefit of ‘ the usage observed toward other Franks.’ * * * The phrase in the second article engages that citizens of the United States in Turkey shall not be ‘treated in any way contrary to established usages.’ The ‘established usages’ are the absolute exemption of all Franks, in controversies among themselves, from the local jurisdiction of the Porte.”
    This receives illustration from the fact that the ex-territoriality of foreign Christians has given rise to a system of judicial tribunals in heathen and Mohammedan countries, for the trial of controversies both civil and criminal, between citizens of Christian nations under the protection of public law and treaty.
    It is believed that the material facts have now been stated upon which the decision of the court was made, and it will be seen that the main question presented was, whether admitting the defendant to have been consul-general and the highest diplomatic officer of the United States in Egypt at the time of the committing of the alleged grievances, he was invested with judicial power under the treaties and laws of the United States, and could exercise judicial authority over the property of American citizens in that country.
    
      Henkle & Arrick, with whom was Mr. F. P. Cuppy, for plaintiff, claimed—
    I. That neither the laws of Turkey nor of this country authorized the defendant to do the things complained of in the declaration.
    II. That however this may be since the passage of the amendatory act of 1866, the laws of the United States had conferred no civil jurisdiction whatever upon the defendant when he committed the grievances complained of.
    III. That the treaties between the United States and Turkey contain no grant or stipulation authorizing American consuls to exercise civil jurisdiction in Turkey.
    IV. That there is no law or usage of Turkey and no law of the United States authorizing American consuls in Turkey to attach the property of persons who are not -within their consulate.
    V. That whatever power consuls in Turkey may possess to hear causes between American citizens residing there, it is an executive and not a judicial power.
    VI. That the process of attachment is an extraordinary remedy, resting exclusively upon statutory enactment, and when resorted to by an executive officer, without authority of law, constitutes a trespass, for which he is liable in an action for damages.
    And cited Hayburn’s case, 2 Dallas, 409. United States, Appellant, vs. Administrator of Pass, 13 Howard, 40. Dainese vs. Allen, 3 Abbot, 212; 1 Peters, 511.
    
      W. Penn Clarke, for defendant, argued that the demurrer to the plea was properly overruled for two reasons :
    1. Because the treaties between the United States and the Turkish Empire, and the laws of the United States, as well as the law of nations, confer upon the consul-general of the United States in Egypt judicial powers both civil and criminal, over the persons and property of citizens of the United States in that country.
    II. Because the declaration of the plaintiff is bad in substance, and though the plea may be defective, a bad plea is a good answer to a bad declaration; and on demurrer, judgment must be given against the party who committed the first error in pleading.
    It is a matter of regret that more space cannot be given to the elaborate briefs of counsel. No written opinion was delivered, but—
   Cartter, C. J.,

pronounced the decision of the court to the effect—

First. That the act of Congress, approved July 22, 1860, entitled “An act to carry into effect provisions of the treaties between the United States, China, Japan, Siam, Persia, and other countries,” &c., confers upon the officers therein mentioned judicial powers which they have authority to exercise over citizens of the United States in those countries in matters both civil and criminal.

Second: That the treaties of 1830 and 1862 with Turkey place our Government on a footing with the most favored nations, giving the same rights and privileges to our people in that country that are conceded by the Sublime Porte to the subjects of other Christian states. That among the rights thus secured is that of establishing consular courts, with jurisdiction to hear and determine all classes of cases between American citizens, to the exclusion of the local jurisdiction; and this is now the well-settled and established usage of Turkey and other non-Christian nations in their intercourse with Europe and the United States. That, therefore, the defendant, as the diplomatic representative of this country in Egypt, had jurisdiction of the proceedings stated in the pleadings, and is not responsible except to the Government and laws of the United States.

Third. It is contended that the defendant is not a judicial court, and is not entitled to the protection of a judge of a judicial court. That the judicial power of the United States is vested by .the Constitution in one Supreme Court and such inferior courts as Congress from time to time may ordain and establish; and that the judges thereof shall hold their offices during good behavior, and their salaries shall not be diminished, and that therefore, as a consul or minister is an executive officer, he cannot be vested with judicial power so as to be entitled to the immunities of a judge; but even if consuls and ministers could not be vested with judicial powers under the constitutional provision referred to, still it might be justified under the part of the Constitution for making treaties and appointing embassadors, ministers, and consuls. That this latter power is general and unrestricted, and leaves Congress at full liberty to make all regulations necessary for the safety and protection of the citizens of the United States in all countries with which we have treaty stipulations. The judicial duties assigned to our ministers and consuls in those countries is, therefore, a legitimate exercise of legislative authority, and as the defendant was empowered thereby to sit as a court, and inasmuch as the acts complained of were done in that capacity, he is not liable in this form of proceeding.

Fourth. That the demurrer to the plea was properly overruled, for the reason that the declaration itself is fatally defective in not stating the quality, quantity, or number or value of the goods, wares and merchandise, or the claims and choses in action, or the names of the parties owing them. This is material in actions for injuries to goods, and as the declaration is the first pleading defective, judgment on the demurrer was properly rendered against plaintiff.

The order overruling the demurrer is affirmed.  