Compensation of Diplomatic and Consular Officers. COMPENSATION OF DIPLOMATIC AND CONSULAR OFFICERS. 1. The diplomatic and consular act of 1855 simply regulated the compensation of ministers and consuls, and did not require that they should be re-appointed. 2. Under that act consuls were entitled to a salary during the time they remained at their posts of duty. 3. Under the act of 1856, a consul was to receive a salary not only for the time spent at the place of his official duty, but, in addition to that, for the time occupied in awaiting his instructions, in travelling to his post of duty, and in returning home at the close of his service. 4. Under these laws each consul is entitled to be paid for his services according to the law which was in force when those services were rendered, without reference to the date of his commission. 5. The provision in the eighth section of the act of 1856, forbidding the allowance of compensation for the time occupied in coming home by a consul who shall have resigned or been recalled for any malfeasance in office, does not apply to the case of a consul who has resigned or been recalled without being guilty of any misconduct. The penalty of having to come home at his own expense is only to be inflicted upon the consul whose misbehavior has obliged the Government to recall him, or who resigns simply to escape a recall which he is conscious of deserving. ATTORNEY GENERAL'S OFFICE, September 21, 1857. SIR: You have propounded to me certain questions relative to the compensation of consuls, to which I now reply. Previous to 1855 the services of nearly all our consuls abroad were paid by fees. The act then passed abolished the right of consuls to receive fees (or at least to keep them) from and after the 30th of June of that year, and provided that thenceforward they should receive certain annual salaries. The act of 1855 was singularly obscure in its phraseology. It declared that, from and after the 30th of June, the President, by and with the advice and consent of the Senate, shall appoint "diplomatic ministers to certain countries, and consuls at certain places, who shall receive an annual compensation for their services, not exceeding the amount herein specified." (10 Stat. at Large, 619.) A Compensation of Diplomatic and Consular Officers. very strict and literal construction of this act would give the salaries provided by it to nobody who was not appointed from and after the 30th of June, 1855, while at the same time it would have taken away from all the then incumbents the right to receive their fees, or, indeed, to hold their offices. But it could not be believed that Congress meant to vacate all our legations and all our consulates on one day, and keep them vacant until new appointments could be sent out to every part of the world. The construction put on the law by the late President and Secretary of State, under the advice of the Attorney General, was that a minister or consul who was in service on the 30th of June, and who was retained in office, was, to all the intents and purposes of the new act, in the same condition as if he had received his commission afterwards. In other words, the law converted the incumbents from fee-paid into salaried officers. That the construction was right I have no doubt. It is in accordance with the general purpose of the act, and any other view of it would have defeated its object and done enormous injury to the public ser vice. The contemporaneous construction of the Executive is high authority for it, and Congress added the weight of its own, by making appropriations to pay ministers who were previously appointed and not recommissioned, as well as by ratifying the treaties which they subsequently negotiated. This brings us one step towards a conclusion. It is settled that a consul retained in office under the act of 1855 is a consul appointed under that act, so far as regards compensation. That compensation was a salary, to be counted from the time when he reached his post of duty down to the time when he left it. To give him more was expressly forbidden. But in 1856 the system was again remodeled. By the eighth section of the act then passed, a consul was to receive salary not only for the time spent at the place of his official duty, but, in addition to that, for the time oc Compensation of Diplomatic and Consular Officers. cupied in awaiting his instructions, in travelling to his post of duty, and in returning home at the close of his service. (11 Stat. at Large, 55.) This last-mentioned act, like the one which preceded it, did not in words apply to consuls or ministers who had been appointed before; but, inasmuch as it was not contemplated to turn them out, it must have been meant that they should remain in office with the new compensation. About this, however, there seems to have been some doubt, which Congress saw proper to put at rest in 1857, by a provision in the appropriation bill, declaring that the act of 1856 should apply to consuls appointed after the act of 1855. Thus the consuls appointed in 1855 are put on a level with those appointed in 1856, and we have seen that consuls whose commissions are dated previous to 1855 have the same compensation as those who were appointed under that act. Things that are equal to the same thing are equal to each other. Therefore there is no difference between the three classes, so far as regards the rule of compensation for services performed at the same time. The result of all this legislation-which certainly does not seem at the first blush to be very plain-is that a consul who served only under the old law received fees, and nothing else. If he was retained after July, 1855, he got a salary for the time he remained at his post. If he held his office after the act of 1856 went into operation he got paid, in addition, for the time spent in coming home. In short, his compensation is to be regulated by the law which was in force when the services were rendered-not by that which prevailed at the date of his commission. The rule is simple as well as just; and though the various acts of Congress express it with some unnecessary circumlocution, they are still plain enough to be understood by any one who will take the trouble to analyze and compare them. A doubt has also arisen about the meaning of the last clause of the eighth section of the act of 1856-a consul shall not be allowed compensation for the time occupied Compensation of Diplomatic and Consular Officers. in coming home, "if he shall have resigned, or have been recalled therefrom for any malfeasance in his office." Do the words italicised qualify the word resigned as well as recalled? I think they do very plainly. The grammatical connection of the whole sentence is such that you cannot separate its parts without violence. A consul cannot be relieved from the duties of his office except by a resignation or recall. If they be terminated in either of these ways, but without any official guilt or delinquency, he may get what the law says a meritorious officer shall havenamely, his full pay, to be counted down to the time when he reaches his own residence. But if he violates his obligations to the public in such a manner that the Government on that account is obliged to recall him, or if he resigns merely to escape a recall which he is conscious of deserv ing, then he shall suffer the penalty of coming home at his own expense. I do not believe that Congress ever had the least intention to make the mere resignation of office a penal offence. The act of 1857 extends the provisions of the act of 1856 to persons appointed after the act of 1855; but it does not give them salaries, according to the act of 1856, except for the services rendered after it went into operation. It was a subject of dispute whether one who served after 1856 could get the salary then given if he had been appointed before? Congress said that he could; but they did not say that he could. be paid for previous services at any higher rate, or by any other rule, than that which was fixed by the law of the time when they were performed. There is no ground whatever for the notion that a consul can now claim a salary for any portion of the time for which he was authorized to get fees, and just as little for the opinion that he can be paid under the law of 1856 for anything he did under that of 1855. A consul, for instance, who was appointed in March, 1855, and went immediately to his post of duty, received fees down to July 1st of that year, and cannot now receive anything else. If you give him the salary created in 1856 for the time spent in making his journey out, you must Compensation of Diplomatic and Consular Officers. give it to him, on the same principle, for the whole time he was there, and let him have fees and salary both. But such a claim would be so absurd that nobody makes it. It all comes at last to what I have already said is the true rule-namely, that each person shall be paid for his services agreeably to the law in force at the time when the services were performed; and there is nothing in the law that can make it either more or less. It may be well that I should not close without applying the rule to the particular cases which you have sent to me. Mr. McCrea, late consul at Paris, claims for time spent in returning home. He is entitled to it, because his return was long after the act of 1856 went into effect, and his resignation was not for malfeasance in office. Mr. Murphy, the late consul at Shanghai, is in the same condition, if I rightly understand the statement of his case as I received it. Mr. Epping, consul at Oldenburg, was appointed in January, 1856. His claim for salary while waiting for instructions and going out cannot be allowed, for two reasons: 1st. He went out while the law of 1855 was in operation, and that law forbade such allowance; and, 2d, the act of 1856 took away all salary from the consulate at Oldenburg, so, that, if it were retroactive, its effect would be, not to give him more than he received under the act of 1855, but to make him refund what he has already got. Mr. Blythe, consul general for Cuba, received his instructions in March, and went out in October, 1856. He cannot be paid for this, because the act of 1856 did not go into effect until January, 1857. Mr. Andrews, late consul general for the British North American provinces, received his instructions in March and April, 1855, when the duties of the office were paid by fees. Of course he is not to be allowed anything by the way of salary for that time. Mr. Huffnagle's instructions as consul general to British India were given him in September, 1855. He claims com |