The provision of the Act of Congress of May 1, 1810, fixing a
salary to the consul at Algiers and assigning to him certain
duties, treating that place as belonging to a Mohammedan power,
ceased to be operative when the country, of which it was the
principal city, became a province of France. The construction of
the Secretary of State to this effect, impliedly sanctioned by the
Act of Congress of March 1, 1855, "to remodel the diplomatic and
consular systems of the United States," 10 Stat. at Large 621, and
expressly sanctioned by the Act of August 18, 1866, to regulate
those systems, 11
id. 52.
An act of Congress "fixing the compensation of public ministers
and of consuls residing on the Coast of Barbary
Page 77 U. S. 63
and for other purposes," passed on the 1st of May, 1810,
[
Footnote 1] provides that the
President shall not allow
"to any consul who shall be appointed to reside at Algiers a
greater sum than at the rate of $4,000 per annum as a compensation
for all his personal services and expenses."
Provision is made by the same act for salaries to consuls at
Tangiers, Tripoli, and Tunis, other towns of the same coast.
At the time when this act was passed, Algiers was and had long
been the capital, regency, or pachalic of the same name, one of the
well known Barbary States, a Mohammedan power, and dependent on the
Ottoman empire, from which empire Turkish pirates had issued in
early days, establishing themselves as sovereign masters of the
City of Algiers. In 1830, a French army landed on the African
coast, and after some fighting, Algiers opened its gates, and the
Dey gave up his city and government. The city then, A.D. 1831,
became and still remains the capital of the French colonial
province of Algeria; French tribunals, including at Algiers a
tribunal of commerce, having largely displaced the native.
The act of 1810 above-mentioned specified the sum which might be
allowed to consuls residing at Algiers, Tangiers, Tripoli, and
Tunis -- all of them ports of what were known as the already
mentioned Barbary States. It also provided that "no consul of the
United States residing in the Barbary States should own in whole or
in part a vessel or be concerned in trade," and some other
provisions in the act showed that had reference to a consul at
Algiers [
Footnote 2] as a place
under the control of one of these same states.
An act subsequent to the conquest of Algiers by the French --
the Act of March 1, 1855 -- making provision for consuls in the
"Barbary States," fixed a compensation for consuls at the last
three named places italicized as above, but made no provision for
the appointment or payment of a consul at Algiers, and a still
later act -- that of August 18, 1856, making similar provision, and
specifically mentioning the
Page 77 U. S. 64
last three, but not specifically mentioning Algiers -- enacted
that consuls for places not thus specifically mentioned should be
entitled, as compensation for their services, to such fees as they
might collect.
With this act of 1810 on the statute book, but after the
conquest of Algiers already mentioned, one Mahoney, in 1854, was
appointed consul of the United States at the City of Algiers, in
the north of Africa. He soon afterwards entered upon the discharge
of his duties, and continued in office until November, 1859, when
he resigned. During this period, he received no salary from the
government, nor did he make any return to the government of fees
received by him as consul, but he was paid the necessary expenses
of his office, and was allowed by the Department of State to
transact business as a merchant. Whilst in office, he preferred no
claim for any salary or compensation for his services, nor did he
afterwards advance any such claim until July, 1865. He then
presented his claim for $4,000 a year as salary to the Treasury
Department. That department referred the matter to the State
Department, and Mr. Seward, then Secretary of State, informed him
that his claim could not be allowed. Its payment was accordingly
refused. He then brought suit in the Court of Claims to recover the
amount.
That court, which found as facts the matters stated in this last
paragraph, dismissed the bill, holding, among other things, as
matter of law that from and after the recognition of Algeria by the
United States as a province of France, the powers and duties of the
consulate at Algiers were regulated and defined by the treaties of
the United States with France, and that the consul became entitled
to receive and hold his fees of office and to transact business,
and was not entitled to receive the salary of $4,000 per annum,
authorized by the act of 1810, fixing the compensation of consuls
residing on the coast of Barbary.
From this dismissal Mahoney, the claimant, appealed.
Page 77 U. S. 65
MR. JUSTICE FIELD, after stating the facts as found by the Court
of Claims, delivered the opinion of the Court.
The language of the Act of Congress of May 1, 1810, would seem
to indicate that the extent of the compensation to be made to the
consul at Algiers was, within the limits prescribed, $4,000 a year,
subject to the control of the President, and that the amount
specified was not payable absolutely to the person appointed. But
assuming for the purposes of this case that the act fixes
absolutely the rate of compensation, we do not think it sustains
the claim of the appellant.
When that act was passed, Algiers was a part of one of the
Barbary States of that name, and it is evident from an
examination
Page 77 U. S. 66
of its provisions that the act was intended to apply to a
consulate at that place only so long as it belonged to one of the
Barbary powers. Years before the appointment of the appellant,
Algiers, and the country of which it was the principal city, had
become a province of France.
A great distinction has always been made between consuls to
Mohammedan and consuls to Christian countries, both in the powers
entrusted to them and in the duties with which they are charged.
The full reciprocity which, by the general rule of international
law, prevails between Christian states in the exercise of
jurisdiction over the subjects or citizens of each other in their
respective territories is not admitted between a Christian state
and a Mohammedan state in the same circumstances, and in our
treaties with Mohammedan powers, express stipulations are made for
the enjoyment by our citizens of certain exterritorial rights with
respect to their persons and property. Whilst, therefore, in
Christian countries consuls are little more than mere commercial
agents, in Mohammedan countries they are clothed with diplomatic
and even with judicial powers. Consuls to Christian countries are
often allowed to engage in business, but consuls to Mohammedan
countries are restricted to the duties of their offices, are paid a
stated salary, and are prohibited from entering into commercial
transactions. [
Footnote 3]
Thus, in the treaty with the Dey of Algiers made in 1816,
[
Footnote 4] it was stipulated
that disputes between citizens of the United States should be
decided by the consul, and in case a citizen of the United States
should kill, wound, or strike a subject of Algiers, or, on the
contrary, a subject of Algiers should kill, wound, or strike a
citizen of the United States, the law of the country should "take
place, and equal justice" be rendered, the consul assisting at the
trial; and the property of a citizen of the United States dying in
Algiers should be under the immediate direction of the consul
unless otherwise disposed of by will.
Page 77 U. S. 67
Provisions like these are not generally made in treaties between
Christian nations, and they impose duties upon consuls which are
not exacted of those officers when acting as mere commercial
agents. It is plain that the duties for which a consul, inhibited
from engaging in commerce and charged with diplomatic and judicial
functions, was required at Algiers whilst that place formed part of
a Mohammedan power and this treaty was in force, ceased when that
country passed under the jurisdiction of a Christian nation and the
treaty with the Dey thus expired. The Department of State from that
time has treated the consulate there as one without salary, to
which the provisions of the Act of May, 1810, were no longer
applicable, one which allowed the incumbent, as consuls in the
countries subject to France are allowed, to engage in business, and
only entitled to receive as compensation for his services such fees
as he might collect, besides the necessary expenses of his office.
[
Footnote 5]
The construction thus given by the Secretary was impliedly
sanctioned by the Act of Congress of March 1, 1855, "to remodel the
diplomatic and consular systems of the United States," [
Footnote 6] and was expressly
sanctioned by the Act of August 18, 1856, to regulate those
systems. [
Footnote 7]
The act of 1810, after specifying the compensation which might
be allowed to the consul appointed to reside at Algiers, designated
the sum which might be allowed to other consuls appointed to reside
in any other of the states on the Coast of Barbary, thus making
provision for all the Barbary States. The ports of these states
where consuls were appointed to reside were Tangiers, Algiers,
Tripoli, and Tunis. Now in the Act of March 1, 1855, compensation
is fixed, under the head of "Barbary States," for consuls to all
those places except Algiers, and no provision is anywhere made for
the appointment of a consul at that place, or for compensation to
one there, showing that Congress did not then think that a consul
with a salary there existed, or was there required.
The Act of August 18, 1856, enumerates the same places,
Page 77 U. S. 68
under the same head of Barbary States, at which consuls are to
be appointed to reside, and designates their compensation,
omitting, as in the act of 1855, the City of Algiers, and provides
that consuls not thus enumerated shall be entitled, as compensation
for their services, to such fees as they may collect, a provision
which in effect declares, when read in connection with the
preceding clauses of the act, that they shall receive no other
compensation. And this latter act repeals all acts and parts of
acts inconsistent with its provisions.
We find no error in the judgment of the Court of Claims, and it
is accordingly
Affirmed.
[
Footnote 1]
2 Stat. at Large 609.
[
Footnote 2]
See §§ 4, 5, and 6.
[
Footnote 3]
Halleck on International Law, chap. 10, §§ 21, 22; Opinions of
the Attorneys General, vol. vii, 346-348.
[
Footnote 4]
8 Stat. at Large 244.
[
Footnote 5]
8 Stat. at Large 106; 10
id. 992.
[
Footnote 6]
10
id. 621.
[
Footnote 7]
11
id. 52.
