In re Baiz

• Decision Date: 05 May 1890
• Citation: 10 S.Ct. 854,135 U.S. 403,34 L.Ed. 222
• Parties: In re BAIZ
• Court: U.S. Supreme Court

135 U.S. 403

10 S.Ct. 854

34 L.Ed. 222

In re BAIZ.

May 5, 1890.

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...