In re Baiz

On the 29th day of June, 1889, an action was commenced by one JohnH enry Hollander in the district court of the United States for the southern district of New York against Jacob Baiz, (see 41 Fed. Rep. 732,) to recover damages for the publication of an alleged libel upon the plaintiff, and a summons was served upon him on the 2d day of July of that year. The defendant entered a general appearance in the action, which was filed July 17, 1889. On the 25th day of September, 1889, the defendant verified his answer, which contained a plea to the jurisdiction of the district court in the following language: 'The defendant alleges that he is now, and ever since the month of July, 1887, has been, the consul general of the republic of Guatemala at the city of New York, and that in or about the month of May, 1889, he received from the republic of Guatemala a duly-authenticated copy of a decree in the English language, dated at the National Palace in Guatemala, May 14, 1889, with instructions in writing from said government to publish the same in the newspapers of the United States, and which said decree had previously been published in the official Gazette, or newspaper, published in said republic, and that pursuant to such instructions, which were sent to him both by letter and by cable, and not otherwise, he did, on or about the 9th day of June, 1889, send to the managers of the Associated Press, in the city of New York, said authenticated copy of said decree, stating that it was possible that said managers would find it of sufficient interest to publish. That prior to the 16th day of January, 1889, one Senor Don Francisco Lainfiesta was envoy extraordinary and minister plenipotentiary of the republic of Guatemala in the United States, and on or about that day he departed from the United States upon a temporary leave of absence, duly granted to him, and that from on or about that day, down to on or about the 10th day of July, 1889, this defendant became and was the acting minister and sole representative of the said republic of Guatemala in the place, and during the absence, of the said envoy extraordinary and minister plenipo tentiary, and was exclusively in charge of the diplomatic affairs of the said republic in the United States. And by reason of the facts herein alleged this defendant claims that this court has no jurisdiction of this action, and that, if any jurisdiction for said act in fact exists in any court, it is vested solely in the supreme court of the United States, pursuant to the provisions of the constitution and the statutes of the United States in such case made and provided.' In January, 1890, a motion was made 'for an order setting aside the service of the summons and all subsequent proceedings in the action, and that the court dismiss the same, on the ground that it has no jurisdiction of this action, and had no jurisdiction over the defendant at the time of the commencement thereof.' This motion was based on the defendant's affidavit, and upon proofs consisting of original written communications from the state department to Baiz, and of duly-certified copies of papers on file in said department; and was resisted by the plaintiff on certain affidavits, and an original letter from the department. On the 17th day of February the motion was denied, and an application was then made to this court for a rule to show cause why a writ of prohibition should not issue to the judge of the district court, prohibiting him from proceeding further in said action; or, if a writ of prohibition could not issue, then for a rule to show cause why a writ of mandamus should not issue, commanding the judge to enter an order dismissing the cause, for the reason that the jurisdiction of said action existed solely in the supreme court, under the constitution and laws of the United States; or for such other and further relief as might be proper in the premises. The application was made upon the petition of the defendant in the action in the district court, and annexed to the petition and forming a part of it was a certified cp y of the entire record in the district court, including every paper used upon the motion, and the opinion of the court. A rule having been issued, the judge of the district court returned thereto that the motion was denied upon the facts and considerations appearing in the record and opinion, copies of which were attached to the petition, and to the order to show cause, and submitted to this court whether the district court should take further cognizance of the said cause, or should dismiss the same.

It appeared before the district judge, as it does here, that Mr. Baiz was and is a citizen of the United States, and a resident of the city of New York, and that he has been since 1887 consul general of Guatemala; that Senor Lainfiesta was, on the 16th day of January, 1889, the minister of Guatemala, of Salvador, and of Honduras, in the United States, and that on that day Senor Lainfiesta addressed a note to the secretary of state, advising him that he was compelled to go to Guatemala for a short time, and saying: 'Meanwhile I beg your excellency to please allow that the consul general of Guatemala and Honduras in New York, Mr. Jacob Baiz, should communicate to the office of the secretary of state any matter whatever relating to the peace of Central America that should without delay be presented to the knowledge of your excellency.' The secretary of state, accordingly, on the 24th day of January, informed Senor Baiz, 'consul general of Guatemala and Honduras,' that the note of Minister Lainfiesta had been received, and that he would 'have pleasure in receiving any communication, in relation to Central America, of which you may be made the channel, as intimated by Senor Lainfiesta.' On the 6th of March, 1889, Mr. Blaine having been appointed secretary of state, information of that fact was communicated by him to 'Senor Don Jacob Baiz, in charge of the legations of Guatemala, Salvador, and Hunduras,' the receipt of which was acknowledged by the latter under date of March 7th, the note of reply being signed, 'JACOB BAIZ, Consul General.' April 1st, the secretary of state addressed a communication to 'Senor Don Jacob Baiz, in charge of the business of the legations of Guatemala, Salvador, and Honduras,' informing him of the appointment of Mr. Mizner as envoy extraordinary and minister plenipotentiary of the United States to the republics of Guatemala, Salvador, and Honduras, and asking him to 'kindly apprise the governments of Guatemala, Salvador, and Honduras' of the appointment. In the official circular issued by the department of state, 'corrected to June 13, 1889,' concerning the 'foreign legations in the United States,' under the heads of Guatemala, Salvador, and Honduras, mention is made of the absence of Mr. Lainfiesta, and a foot-note is referred to which reads 'Jacob Baiz, consul general, in charge of business of legation, New York city.' That circular shows that Russia, Austria, and Corea were represented by ministers who were absent, and had charges d'affaires ad interim, whose names are severally given, described as such, and the dates of their presentation. Brazil and Venezuela had no ministers, but were represented by a charge d'affaires or a charge d'affaires ad interim, the name of the incumbent and the date of his presentation being given in each of these instances. Portugal had no minister, and the name appears of 'Baron d'Almeirim, consul, and acting consul general, in charge of business of legation,' and the fact and date of his presentation. Consul General Baiz is alone referred to in a footnote, and is not shown to have been presented. Senor Lainfiesta did not return as minister, and on or about the 10th day of July, 1889, Dr. Fernando Cruz arrived in this county, and was presented by the secretary of state to the president as the envoy extraordinary and minister plenipotentiary of the republic of Guatemala to the United States.

Mr. Baiz answered in the action brought by Hollander, September 25, 1889. On the 3d of October, 1889, counsel for the plaintiff addressed to the state department a letter in which he inquired who was the minister of the state of Guatemala from January to August, 1889; and received an answer under date of October 4, 1889, signed by the second assistant secretary of state, as follows: 'I have to acknowledge the receipt of your letter of the 3d inst., and to say in reply that Senor Fernando Cruz presented his credentials as the envoy extraordinary and minister plenipotentiary of Guatemala here, July 11, 1889. Prior to that Senor Lainfiesta was the accredited and recognized minister, but had been for some time absent from the United States. During his absence the business of the legation was conducted by Consul General Baiz, but without diplomatic character.' On the 11th of January, 1890, Senor Cruz sent the following communication to the state department: 'Mr. Michael H. Cardozo, counsel for Don Jacobo Baiz, in the suit which has been brought against the latter by Mr. J. H. Hollander in New York, presented to your excellency a brief of the facts in the case, and made application to you to be pleased to order that he be furnished with a certain certificate in regard to the character of Mr. Baiz during the absence of Don Francisco Lainfiesta, and until I arrived to take his place. It being urgent to possess this document, since the day approaches to make use thereof, and the government of Guatemala having instructed Mr. Baiz to make the publication upon which the suit is brought, under the belief that he was its representative in this country from the day of Senor Lainfiesta's departure, I take the liberty of begging your excellency to be pleased to order that the certificate applied for by Mr. Cardozo be issued as soon as possible, and sent to me in order that I may forward it without loss of time.' The acting secretary of state replied January 21, 1890, acknowledging the receipt of Senor Cruz's note of the 11th, and continuing thus: 'The facts are that on January 16, 1889, Mr. Lainfiesta informed the department of his proposed departure from the United States for Guatemala on a leave of absence. In conveying this information to the secretary of state, Mr. Lainfiesta said. 'In the mean time I beg your excellency to permit Mr. Jacob Baiz, consul general of Guatemala and Honduras at New York, to communicate to the department of state any information connected with the peace of Central America that may be of sufficient importance to be brought without delay to your excellency's notice.' Referring to this note the department, on January 24, 1889, wrote to Mr. Baiz, saying: 'The secretary of state will have pleasure in receiving any communcation in relation to Central America of which you may be made the channel, as intimated by Senor Lainfiesta.' The next communication of the department to Mr. Baiz bears date March 6, 1889, in which he was informed of the accession to office of the present secretary of state, which Mr. Baiz acknowledged on the following day. On April 1st, 1889, the department addressed a communication to Mr. Baiz, 'in charge of the business of the legations of Guatemala, Salvador, and Honduras,' in which he was informed of the recall of Mr. Henry C. Hall as envoy extraordinary and minister plenipotentiary of the United States to the republics of Guatemala, Salvador, and Honduras, and of the appointment by the president, by and with the advice and consent of the senate, of Mr. Lansing B. Mizner to that post. Mr. Baiz was requested to apprise the respective governments of this appointment. This communication Mr. Baiz acknowledged on April 2d, 1889. On May 17th, 1889, Mr. Baiz announced to the department your appointment by the government of Guatemala as its minister plenipotentiary at this capital in place of Mr. Lainfiesta, which was duly acknowledged by the department on the 20th of the same month. Subsequently, correspondence took place between the department and Mr. Baiz in relation to your entrance into the United States, and to your reception as mii ster. On June 14, 1889, Mr. Baiz inclosed to the department an autograph letter from the president of Guatemala, dated May 20, 1889, to the president of the United States, relative to the recall of Mr. Hall as United States minister to the states of Central America. Of this communication the department acknowledged the receipt, on June 25, 1889. This, it is believed, is a correct resume of the facts in regard to Mr. Baiz's action as the representative of Guatemala in the absence of her duly accredited minister from the United States.'

After the return to the rule, counsel appearing in opposition to granting the writ moved for an order that the petitioner show cause why certain papers presented by him should not be submitted for the consideration of the court in the determination of the matter; and the petitioner, after objecting to the granting of the order, and protesting against the receipt of the papers, submitted certain papers on his part. These papers taken in chronological order are as follows: A letter dated February 2, 1886, from the minister of foreign affairs of the republic of Honduras to Mr. Baiz, transmitting an appointment as charg e d'affaires of the republic of Honduras to the government of the United States, and hoping that he will accept said appointment, 'filling it to the best interests of the country, endeavoring principally to prevent filibustering expeditions,' etc. Accompanying it was a communication addressed to the state department, under date of February 1, 1886, and conveying information of the fact of the appointment. This was presented to Mr. Bayard, then secretary of state, who replied on the 22d of March, 1886, as follows: 'Agreeably to the promise made to you in person recently by Assistant Secretary Porter, I have considered the questions involved in your nomination as charg e d'affaires of Honduras in the United States. A difficulty arises in the fact stated by you to Mr. Porter, that you are a citizen of the United States. It has long been the almost uniform practice of this government to decline to recognize American citizens as the accredited diplomatic representatives of foreign powers. The statutory and jurisdictional immunities, and the customary privileges of right attaching to the office of a foreign minister, make it not only inconsistent, but at times even inconvenient, that a citizen of this country should enjoy so anomalous a position. The very few past exceptions to this rule have served to show its propriety, especially when, as in your case, it has been sought to supplement the consular functions (which an American citizen may, if otherwise acceptable, hold with perfect propriety) by an added diplomatic rank and function. Were it merely a question of conducting public business with you as the de facto charg e d'affaires ad interim during the absence of a regularly accredited envoy of Honduras, there would be little difficulty. In fact, you now stand on that footing for all practical purposes, since the department of state corresponds with you as consul general, upon whatever diplomatic business may arise; but it is to be borne in mind that this is done because the office of the envoy is for the time being unfilled. Your substitutionary agency is cheerfully admitted, but this is different from recognizing you as invested with the diplomatic character as the incumbent of the mission. While this motive would alone constrain me, although with regret, from acceding to the expressed desire of the government of Honduras, and receiving you as its diplomatic representative, I find another consideration in the phraseology of your official letter of credence.' The secretary then considers the objection arising out of the fact that that instrument 'announces that the office of charg e d'affaires is conferred upon you for the express purpose of negotiating with this government to prevent the organization in the United States of hostile expeditions against Honduras, and causing certain persons named therein to be put under bonds 'not to contrive in any way against the peace of Honduras." The letter of credence, and also the letter of the Honduranean minister of foreign relations, were returned. On the 24th day of March, 1886, Consul General Baiz acknowledged the receipt of the dispatch of the 22d, and said. 'I will lose no time to inform the government of Honduras of our correspondence, and that your excellency has kindly consented to admit my substitutionary agency in the absence of a minister, by virtue of my being the consul general. I thank you for this recognition, the extent of which I appreciate; but in order to fully satisfy the government of Honduras, which has conferred this honor on me, I take the liberty to ask whether, in the absence of a minister, the state department will consider the consul general charg e d'affaires ad hoc, or as diplomatic agent of Honduras, for all practical as well as official purposes, without relieving me of duties and responsibilities incumbent on a citizen of the United States. The declination of the state department of my credentials, on the ground that they express a purpose of a negotiation not admissible under the laws of the United States, will, no doubt, be satisfactory to the government of Honduras.' On the 3d day of April, 1886, the secretary of state answered the inquiry of Mr. Baiz in these words: 'I have received your letter of the 24th ultimo, in which, after referring to the willingness expressed in my letter to you of the 22d March to admit, in the absence of a minister of Honduras, your substitutionary agency in virtue of your office as consul general, you inquire 'whether, in the absence of a minister, the state department will consider the consul general charg e d'affaires ad hoc, or as a diplomatic agent of Honduras, for all practical as well as official purposes, without relieving' you 'of duties and responsibilities incumbent on a citizen of the United States.' In reply, I have to inform you that it is not the purpose of the department to regard the substitutionary agency, which it cheerfully admits in your case, as conferring upon you personally any diplomatic status whatever. Your agency is admitted to be such only as is compatible with the continued existence of a vacancy in the diplomatic representation of Honduras in the United States. To recognize you as charg e d'affaires ad hoc would be to announce that the vacancy no longer existed, and that diplomatic representation was renewed in your person. It is a common thing to resort to a temporary agency, such as yours, in the conduct of the business of a mission. A foreign minister, on quitting the country, often leaves the affairs of this office in the friendly charge of the minister of another country, but the latter does not thereby become the diplomatic agent of the government in whose behalf he exerts his good offices. The relation established is merely one of courtesy and comity. The same thing occurs when the temporary good offices of a consul are resorted to. In neither case is a formal credence, ad hoc or ad interim, necessary.'

Michael H. Cardozo and Joseph H. Choate, for petitioner.

[Argument of Counsel from pages 413-417 intentionally omitted]

R. D. Benedict, for respondent.

Mr. Chief Justice FULLER, after stating the facts as above, delivered the opinion of the court.