Subject: The brothers Kindinico in Egypt, judgment of Visetti against them. Mr. Beardsley’s No. 78, asking instructions on the subject.
For the purposes of the question now involved it is not deemed necessary to examine the official correspondence between the Department and the consul-general at Alexandria further back than Mr. Hale’s No. 133, of October 22, 1868. In that dispatch Mr. Hale informs the Department:
- That one Trubro (an Ottoman subject) called at the consulate as the attorney of the Kindinicos with the information that George N. Kindinico had, on the 3d of July, 1868, received his final naturalization papers in the supreme court of the city of New York, and had, on the 29th of the same month, obtained from this Department a passport, No. 38,456. He desired the consul to transmit to the local authorities a claim of Geo. Kindinico against a native subject. Mr. Hale declined to do so, advised the Department of his action, and also states that the claim now presented is one of a large number of similar claims awaiting recognition by the American consulate.
- In its No. 65, of the 29th December, 1868, the Department, in answer to the above dispatch, speaking of the particular claim, says: “Upon the face of the papers these would appear to be merely private claims, not involving any controversy with the government of Egypt. If this [Page 1324] be so, the circumstance of the Kindinicos not being personally present in Egypt is no reason for withholding the assistance,” and instructs him to ascertain whether the claims are merely private or partake of a political character, and to report for further instruction, and also advises the consul that Thos. Kindinico was furnished with a new passport on the 20th of August, 1868.
- On the 29th of January, 1869, Mr. Hale, in his No. 143, informs the Department that the claims are of a private character, enters into a detailed history of the Kindinico matters, referring especially to a previous instruction of the Department in 1864, wherein it denounced the claims of the Kindinicos to American citizenship as groundless and fraudulent. In this dispatch the consul furnishes an index to all the official correspondence on the subject between the Department and the consulate.
- The Department on the 1st of April, 1869, in instruction 67, replying to the above dispatch, says: “The Messrs. Kindinico have been naturalized as citizens of the United States, and will receive the ordinary recognition due to that character;” adding, “This recognition and protection, however, are not to relate back to proceedings antecedent to the naturalization of those persons respectively, nor to any controversies in which they have been or may be involved with the Government, in respect to which the instructions heretofore given you are confirmed.” It further instructs the consul to exact from the Kindinicos in all transactions with the local government on their behalf such security for costs as will indemnify the consulate against loss or liability.
- The above instruction seems to indicate very clearly the views of the Department as to the non-retroactive character of the act of naturalization.
- On the 12th of March, 1870, Mr. Hale, in his No. 198, informs the Department that he has received a paper from the consulate-general of Italy, stating that G. B. Visetti, an Italian subject, had, in 1859, recovered, in the court of the consul-general of Austria, (of which country the Kindinicos were then subjects,) a judgment against the brothers Kindinco for $8,000; that certain real estate in Alexandria, owned by the Kindinicos, had been set apart by the court for its payment, but the judgments had never been carried into effect; that neither the Austrian nor American consulate recognized the Kindinicos as citizens of their respective countries; that the Egyptian government had announced by circular that the Kindinicos would not be recognized as other than Ottoman subjects, no matter what their naturalization.
- The Italian consul sends a copy to Austrian and American consulates, and also to local government.
- Mr. Hale files it and reports to Department.
- This dispatch is acknowledged on the 18th of April, 1870, instruction No. 87, and the hope expressed that the adoption of the new system of judicial reforms in Egypt will relieve the consulate from further annoyance in relation to the affairs of the Kindinicos.
- In the dispatch now before me, (78, from Mr. Beardsly,) he says Mr. Butler interfered in behalf of the Kindinicos; no mention of it in Mr. Butler’s dispatches. Mr. Beardsly now wishes instruction as to his duty in the premises, and asks, in case the question of the execution of the judgment, either by the Austrian consul or the local authorities, “seeking to execute, he should interfere to prevent its execution on the ground that the Kindinicos are now citizens of the United States, or whether, on the other hand, if appealed to by the Austrian or Italian consul, he should aid in the enforcement of the judgment.
It is, in my opinion, no part of the duty of the United States consul to interfere either to prevent the execution of the judgment or to aid in its enforcement. As to the United States and their courts, it stands in the relation of a foreign judgment, obtained in the courts of a friendly power, the court having jurisdiction of the person and the subject-matter. As such the judgment is entitled to the highest respect. It was long a question of debate in England whether foreign judgments should be held conclusive, or whether their merits might not be inquired into when they were sued on in English courts. In a case cited in Story’s Conflict of Laws (§ 604) Lord Nottingham is reported in these words:
We know not the laws of Savoy; so, if we did, we have no power to judge them, and therefore it is against the law of nations not to give credit to the sentences of foreign countries till they are reversed by the law and according to the form of those countries where they were given. For what right hath our kingdom to reverse the judgment of another, and how can we refuse to let a sentence take place until it he reversed? And what confusion would follow in Christendom if they should serve us so abroad and give no credit to our sentences?
And Lord Hardwicke, quoted in the same connection, says:
Where any court, foreign or domestic, that has the proper jurisdiction of the case makes the determination, it is conclusive to all other courts. (Ibid).
Visetti might take a transcript of that judgment and sue the Kindinicos in the United States consulate, and there get another judgment, which he could then ask our consul to enforce; so, if he wished to collect it in New York, or elsewhere in the United States, he would have to sue on the judgment and obtain a judgment in our courts, but as to its execution by the subjection of the property upon which it was made a lien at the time of its rendition, it stands to the United States consulate in Egypt and to the United States precisely as if it were being enforced in Austria or any other foreign country; and the same rule holds as, I think, if the Austrian consulate or the local authorities seek to enforce the judgment in any other way, within the limitations of civilized usage and the law of nations. On the principles above stated the United States consul cannot be called upon to give any aid to the plaintiff, to the Italian consul, the Austrian consul, or anybody else, in enforcing it. It is not a judgment of his court, nor of the courts of his nation. Mr. Kindinico cannot claim to be in any better position than if he had left Austria, came to the United States, took up his residence here, and become naturalized, leaving a judgment behind in Austria against him which was being enforced against his property in Austria. This is just his relation to the American consulate-general in Egypt.