Dainese v. Hale
Annotate this Case
91 U.S. 13 (1875)
U.S. Supreme Court
Dainese v. Hale, 91 U.S. 13 (1875)
Dainese v. Hale
91 U.S. 13
1. Judicial powers are not necessarily incident to the office of consul, although usually conferred upon consuls of Christian nations in Pagan and Mahometan countries, for the decision of controversies between their fellow-citizens or subjects residing or commorant there, and for the punishment of crimes committed by them.
2. The existence and extent of such powers depend on the treaty stipulations and positive laws of the nations concerned.
3. The treaty between the United States and the Ottoman Empire, concluded June 6, 1862 (if not that made in 1830), has the effect of conceding to the United States the same privilege, in respect to consular courts and the civil and criminal jurisdiction thereof, which are enjoyed by other Christian nations, and the Act of Congress of June 22, 1860, established the necessary regulations for the exercise of such jurisdiction.
4. But as this jurisdiction is in terms only such as is allowed by the laws of Turkey or its usages in its intercourse with other Christian nations, those laws or usages must be shown in order to know the precise extent of such jurisdiction.
5. The court cannot ordinarily take judicial notice of foreign laws and usages; a party claiming the benefit of them by way of justification must plead them.
6. The defendant, as Consul General of Egypt, in 1864 issued an attachment against the goods of the plaintiff there situate. The plaintiff and the persons at whose suit the attachment was issued were citizens of the United States, and not residents or sojourners in the Turkish dominions. For this act the plaintiff brought suit to recover the value of the goods attached. The defendant pleaded his official character, and, as incident thereto, claimed jurisdiction to entertain the suit in which the attachment was issued. Held that the plea was defective for not setting forth the laws or usages of Turkey upon which, by the treaty and act of Congress conferring the jurisdiction, the latter was made to depend, and which alone would show its precise extent, and that it embraced the case in question.
This action was brought to recover the value of certain goods, chattels, and credits of the plaintiff which the defendant, in November, 1864, then being Consul General of the United States in Egypt, caused to be attached. The declaration alleged that the defendant, by usurpation and abuse of his power as such consul general, and for the malicious purpose of injuring the plaintiff, took cognizance of a certain controversy between the plaintiff and Richard H. and Anthony B. Allen (all being citizens of the United States, and none of them residents of or sojourners within the Turkish dominions at that time), and made and issued the order of attachment by virtue of which the seizure in question was made.
The defendant pleaded that at the time of issuing the attachment, he was agent and Consul General of the United States in Egypt, and was furnished with a letter of credence from the President of the United States to the Pacha; that in his said official capacity he exercised the functions and duties of a minister; and by the law of nations, as well as the laws of the United States, he was invested with judicial functions and power over citizens of the United States residing in Egypt, and, in the exercise of those functions, took cognizance of the cause referred to in the declaration, and issued the attachment complained of.
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