In Re Baiz
delivered the opinion of the court.
The judicial power of the United States extends to “áll cases affecting ambassadors, other public ministers, and consuls.” Const. Art. III, sec. 2.
By section 687 of the Revised Statutes, it is provided that the Supreme Court “ shall hate exclusively all such jurisdiction of. suits or proceedings against ambassadors, or other. public ministers, or their domestics, or domestic servants, as a. court of law can have consistently with the law of nations;
The exemption asserted ceased on the 10th of July, 1889, and on the 17th of July the petitioner gave a general notice' of appearance in the action, but did not set up the want of jurisdiction until the 25th of the following September. _ Suit could have been brought-in that court against him on the 11th day of July, but as in his view this could not have been done on the 29th of June or the 2d of July, he contends that the District Court should be ordered to dismiss the suit, though it .could at once be recommenced therein. But it is said that the appearance did not waive the right to be sued in this court rather than in the District Court, because that was the privilege of the country or government which he represented. "Without pausing to inquire how far this is á correct application of the international privilege of not being sued at all, its assertion, even in this restricted form, serves to' emphasize petitioner’s contention that he was at that time the minister or. diplomatic agent of the republics of Guatemala, Salvador and Honduras in the United States, entrusted by virtue of his office with authority to -represent those republics in their negotiations and to vindicate their prerogatives.
These words are descriptive of a cla,ss existing by the law of nations, and apply to diplomatic agents whether accredited by the United States to a foreign power or by a foreign power to the United States, and the words are so used'in section 2 of Art. III. These agents may be called ambassadors, envoys, ministers, commissioners, chargés d’affaires, agents, or otherwise, but they possess in substance the same functions, rights and privileges as agents of their respective governments for the transaction of its diplomatic business abroad. Their designations are chiefly significant in the relation of rank, precedence or dignity. 7 Opinions Attys. Gen. (Cushing), 186.
Hence, when in subdivision fifth of section 1674 of the Revised Statutes we find “diplomatic officer” defined as including “ ambassadors, envoys extraordinary, ministers plenipotentiary, ministers resident, commissioners, chargés d’affaires, agents and secretaries of legation, and none others,” we understand that to express the view of Congress as to what are included within the term “public ministers,5’ although the section relates to diplomatic officers of the United States.
But the scope of the words “ public ministers ” is defined in the • legislation embodied in Title XLVII, “ Foreign Relations,” Rev. Stat., 2d ed. 783. Section 4062 provides that “ every person who violates any safe conduct or passport duly' obtained and issued under authority of the United States ; or who assaults, strikes, wounds, imprisons or in any other manner offers violence to the person of a public minister, ,in violation of the law of nations, shall be imprisoned for not more than three years, and. fined, at the- discretion of the court.” Section 4063 enacts that whenever any writ or process is sued out or prosecuted by any person in any court of the United States, or of a State, or by any judge or justice, whereby the person of any public minister of any foreign prince or state, authorized and received as such by the President, or any domestic or domestic servant of any such minis
. Section 4130,, which is the last section of the title, is as follows : “ The word ‘ minister,’ when used in this title, shall be understood to mean the person invested with, and exercising, the principal diplomatic functions. The word ‘ consul ’ shall be understood to mean a,ny person invested by the United States with, and exercising, the functions of consul general, vice-consul general, consul or vice-consul.”
. Sections 4062, 4063, 4064 and 4065 were originally sections 25, 26, 27 and 28 of the Crimes Act of April 30, 1790, c. 9, 1 Stat. 118; and these were drawn from the statute 7 Anne, c. 12, which was declaratory simply of the law of nations, which Lord Mansfield observed, in Heathfield v. Chilton, 4 Burrow, 2015, 2016, the act did not intend to alter and could not alter.
In that case, involving the discharge of the defendant from custody, as a domestic servant to the minister of the Prince Bishop of Liége, Lord Mansfield said: “ I should desire to know in what manner this minister was accredited — certainly, he is' Uipt an ambassador, which is the first rank — envoy, indeed, is á second class ;• but he is not shown to be even an envoy. He is called ‘ minister,’ ’tis true; but minister (alone) is an equivocal term.” The statute of Anne was passed in consequence of the arrest of an ambassador of Peter the Great for debt, and the demand by the Czar that the sheriff of Middlesex and all others concerned in the arrest should be punished with instant death, 1 Bl. Com. 254; and it was in reference to this
Three cases are cited by counsel for petitioner arising under or involving the act of 1790. In
United States
v. Liddle,
These cases clearly indicate the nature of the evidence proper to establish whether a person is a public minister within the meaning of the Constitution and the laws, and that the inquiry before us may be answered by such evidence, if adduced.
•Was Consul General Baiz a person “invested with and exercising the principal diplomatic functions,” within section 4130, or. a “ diplomatic officer,” within section- 1674 ? His counsel claim in their motion that he was “the acting minister or charge d’affaires of the Republics of Guatemala, Salvador and Honduras in the United States,” and so recognized by the State Department, and that he exercised diplomatic functions as such, and therefore was a public minister, within the statute.
By the Congresses of Vienna and Aix-la-Chapelle four distinct kinds of representation were recognized, of which the fourth comprised chargés d’affaires, who are appointed by the minister of foreign affairs, and not as the others, nominally or actually by the sovereign. Under the regulations of this government the representatives- of the United States have heretofore been ranked in three grades, the third being chargés d’affaires. Secretaries of. legation act ex offieio as chargés d’affaires ad interim, and in the absence of the secretary of legation the Secretary of State may designate any competent person to act ad interim, in which case- he is specifically accredr ited by letter to the minister for foreign affairs.
Wheaton says: “ Chargés d’affaires, accredited to the ministers of foreign affairs of the court at which they reside, are either chargés d’affaires ad hoe, who are originally sent, and accredited by their governments, or chargés d’affaires per interim, substituted' in the place of- the minister of their respective nations during his absence.” Elements Int. Law (8th ed.), § 215.
“ They,” observes Twiss in his Law of Nations, § 192, “ are orally invested with the charge of the embassy or legation by the ambassador or minister himself, to be exercised during his absence from the seat of his mission. They are accordingly announced in this character by him before his departure to the minister of foreign affairs of the court tq. Avhich he is accredited.”
Diplomatic duties are sometimes imposed upon consuls, but only in virtue of the right of a government to designate those who shall represent it.in the conduct of international affairs, 1 Calvo, Droit Int. 586, 2d ed. Paris 1870, and among the numerous authorities on international laws, cited and quoted from by petitioner’s counsel, the attitude of-consuls, on.Avhom this function is occasionally conferred, is perhaps as well put by De Clercq and De Vallat as by any, as follotvs:
2 “ There remains a last consideration to notice, that of a consul who is ■ charged for the time being with the management' of the affairs of the diplomatic post; he is accredited in this-case in his diplomatic capacity, either by' a letter of the minister-of foreign affairs of France-to the minister of' foreign affairs of the country where he is about to reside, or by a letter of the diplomatic agent whose place he is about to fill, or finally by a personal presentation of this agent to -the minister of foreign affairs of the country.” Guide Pratique des Consulats, Vol. 1, p. 93.
“No consular officer shall exercise diplomatic functions, or hold any diplomatic correspondence or relation on the part of (the United States, in, with, or to the government or country .to which he is appointed, or any other country or government. When there is in such country any officer of the United States authorized to perform diplomatic functions therein; nor in any case, unless expressly authorized by the President so to do.”
But in such case their consular character is necessarily subordinated to their superior diplomatic character. “ A consul,”, observed Mr. Justice -Story, in
The
Anne,
When a consul is appointed chargé d’affaires, he has a double political capacity; but though invested with full diplomatic privileges, he becomes so invested as chargé d’affaires and not- as consul, and though authorized as consul to communicate directly with the government in which he resides, he does not thereby obtain the diplomatic privileges of a minister. Atty. Gen. Cushing, 7 Opinions, 342, 345.
' We are of opinion that Mr. Baiz was not, at the time of ■the commencement of the suit in question, chargé d’affaires ad interim of Guatemala, or invested with and exercising the principal diplomatic functions, or in any view, a “ diplomatic officer.” He was not a public minister within the intent and meaning of § 681; and the District Court had jurisdiction*
The letter of Señor Lainhesta
of
January 16, 1889,’ was neither an appointment of Mr.'Baiz as chargé d’affaires
ad
interim, nor equivalent to such an appointment. It was a request in terms that the Secretary .of State would “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 matters relating to the peace of Central America of which that, department ought to be informed without delay. This is not the language of designation to a representative position, and is the language designating a mere medium of communication; and the reply of Mr. Secretary Bayard so treats it, in declaring that the-department would be pleased to receive any communication in relation to Central America of which Consul General Baiz might be made the- channel. This reply is addressed to Mr. Baizas “Consul General of Guatemala and Honduras,” and not as chargé d’affaires
ad interim.
.The mere fact that .the usual note conveying the information to the legations of Mr. Secretary Blaine’s accession chanced, to be addressed to “Señor Don Jacob Baiz, in charge of the legations of Guatemala, Salvador and Honduras,” was not a recognition that he was chargé d’affaires
ad
interim, or exercising diplomatic functions; and Mr. Baiz in acknowledging the receipt of that
The proofs show that of ten letters from the State Department to Mr. Baiz, between January 16 and'July 10,1889, two were addressed to him as in charge of the legations, .or the business of the legations, of Guatemala, Salvador and Horn duras; two were addressed to him as Consul of Honduras; and six as Consul General of Guatemala, or Guatemala and Honduras. Of seven letters from Mr. Baiz to the department, one was signed Jacob Baiz, and six, Jacob Baiz, Consul General. The acknowledgment, of notice of the-accession of the Secretary of State, and of the appointment of Mr. Mizner, and the transmission of a letter from the President of Guatemala, and the announcement of the appointment of Minister Cruz, by the Consul General, can hardly be regarded as the performance of diplomatic functions as such.
The official circular issued by the Department of State, corrected to June 13,-1889, gives the names and description of the ehargés d’affaires
ad
interim, in the case of countries represented by ministers who were absent and of countries having no minister, and the date of their presentation. In the instance of Portugal, the name is given of “ Consul and acting Consul General, in charge of business of legation,” and the fact of the presentation with the date appears in the list; while in the instance of Guatemala, Salvador' and Honduras, the name of Mr. Baiz is referred to in a foot-note, with the title of Consul General only; nor does it appear, nor is it claimed to be the fact, that he was ever presented. As stated by
Mr. Baiz was a citizen of the United States and a resident of the city' of New York. In many countries it is a state maxim that one of its own subjects or citizens is not to be received as a foreign diplomatic- agent, and a refusal to receive, based on that' objection, is always regarded as reasonable. The expediency of avoiding a possible conflict between his privileges as such and his obligations as a subject or citizen, is considered reason enough in itself. Wheaton, 8th ed. § 210; 2-Twiss, Law of Nations, 276, § 186; 2 Phill. Int.' Law, 171. Even an appointment as consul of a native of the place where
1 “Other powers,” says Calvo, vol. 1, p. 559, 2d ed., “admit .without difficulty their own citizens as representatives of foreign States, but imposing on them the obligation of amenability to the local laws as to their persons and property. These conditions, which, nevertheless, ought never to go so far as to modify or alter the representative character, ought always to be defined before or at the time of .receiving the agent; for otherwise, the latter’ might find it impossible to claim the honors, rights and prerogatives attached to his employment.” See also Heffter, 3d Fr. ed. 387. 2
In the United States, the rule is expressed by- Mr. Secretary Evarts, under date of September 19, 1879, thus: “ This government objects to receiving a citizen of the United States as a diplomatic representative of a foreign power. Such citizens, however, are frequently .recognized • as consular officers of other nations, and this policy is not known to have hitherto occasioned any inconvenience.” And again, April 20, 1880, while waiving the obstacle in the particular instance, he says : “The .usage of diplomatics intercourse between nation» is averse to the acceptance, in the representative, capacity, of a person who,, while native born in the country‘which sends him, has yet acquired lawful statu? as'a citizen'by naturalization of the country to -which he is. sent.” 1 Wharton Dig. Int. Law 2d ed. § 88a, p. 628. Of course the objection would
Jt is objected that we ought not to have allowed these
; The practice in prohibition was formerly to file a suggestion, an affidavit in support of which was. required where the pro-' hibition was moved for upon anything not appearing upon the facé of the proceedings; - Upon a rule to show cause,' if it •appeared to the court, on cause shown, that the surmise was not true, or not clearly sufficient to ground the prohibition upon it would be denied, otherwise the rule would be made absolute : or, if the matter were doubtful, the party was ordered to declare, and issue joined on such declaration was regularly tried, being in the nature of an issue .to inform the conscience
In
Ex parte Hitz,
Petitioner,
Regarding the matter in hand as. injts .general nature, one of delicacy and importance, we have mot thought- it desirable to discuss the suggestions of counsel in relation to.'the remedy, but have preferred to examine into and pass upon the merits.
We ought to add that while we have not cared to dispose
Our conclusion is, as already stated, that the District Court had jurisdiction, and we accordingly discharge the rule and
Deny the writs.
Notes
Les Chargés d’affaires ad hoc, en mission permanente, sont accrédités par des lettres remises au ministre -des affaires étrangeres.' Les chargés d’affaires ad interim sont présentés comme tels par lé ministre de premiére ou 2de Classe-lorsqú’ll se dispose á quitter son poste temporairemc .. ou. déñnitivemetit.
Il reste une derniére supposition á píévoir: eelle oü un cónsul est chargé provisoirement de la gestión des affaires d’un poste diplomatique; il est
D’autres puissances admettent sans dificulté leurs nationaux comme représentants d’Etats étrangers, mais, en leur. imposant l’obligation de Tester soumis aux lois territoriales pour leurs personnes et pour leurs biens. Ces conditions, qui cependant ne sauraient jamais aller jusqu’á modifier ou á altérer le caractére représentatif, doivent toujours étre ex.primées avant ou au moment de reqevoir l’agent; car autrement celui-ci se trouverait dans l’impossibilité de revendiquer les honneurs, les droits, et les prérogatives attachés á son emploi.
En pareil cas le consentement du gouvernement étranger est indispensable, et ce consenterñent peut étre conditione) et limité.'