Evening star. [volume] (Washington, D.C.) 1854-1972, 1882-12-06
THE CASE OF MIR. Hurz.


lniS morning In the Criminal Court Judge
Wylie announced his decision on the plea and de-
murrer argued Saturday In the case OF the United
States against John Hitz, c. E. Prentiss and
others The Indictment, he said, averred that on
the 18th OF July, 1878, Hitz held :he ONCE OF pres-
dent OF the German American National bank and
while he held that ONCE he was guilty OF emoez-
Element To that Indictment Mr.. Hitz filed a plea
setting forth that the court ought not take cog
nlzance or the charge, as he was q native and
citizen OF Switzerland, and at the time named was
consul general and political agent Of the Swiss
government In the United States
To this plea the United States by its special at
torney MT Perry, filed general demurrer, setting
appended to the demurrer stating that &c was
double, In setting forth three separate averments
THE CAUSES OF DEAuRRER NOT WELL TAKEN
Judge Wylie said he had come to the conclusion
that as to the causes of demurrer they were not
well taken. II the plea that Mr. Hitz was consul
general was proper one, then IL was proper also
70 set out that he was an alien as It might happen
That consul general was citizen OF the United
STATES Inc averment Of alienage was, therefore,
not separate plea, but an important part OF the
9escrpIon setting forth the character or the plea
uer. AS 10 the other separate averments on the
race OF the plea, it did not appear; but his an
polntment both as consul general and political
agent, might have been made at the same time
But, according to the stipulation of consul the
commissions being introduced as part OF the plea
IL was SHOWN that this was not the case, the APP
GEN. BUFFERS POSITION.
Judge Wylie said that Gen. Butler In the course
OF MS argument diSclaimed fer the defense any
lntentlon OF seeking exemption under the appoint
ment OF consul general, resting his claim solely
on Mr.. Hitz' appointment as political agent
Judge Wylie thought it was within the power of
the court to overlook the fault, even IL the plea
were double; but, after the disclaimer by Gen.
Butter he was inclined to look upon the plea as
without
IorInailty would only produce further delay and
ooth slides expressed anxiety to press the case to
general demurrer to the substance OF the plea
Although counsel have disclaimed all claim of
prraniege, Dy virtue OF defendants character as
consul general yet in the face OF the pleading the
court would consider that subject.
ooNsuLs AAENABLE TO THE SAME LAWS AS OUR OWN
CITIZENS
Inc court read from Lawrence's Wheaton as to
the privileges OF consul, maintaining the position
mat such officials were amenable to local law
The great weight Of authority, the court said.
supported that opinion OF the law. He cited an
opinion by Mr. Cushing, supporting this view.
Besides that II was provided by the 9TH article OF
the treaty between the Swiss confederation and the
United States, adopted in 1885, that In their prt-
vate and business character, consuls and vice
consuls shall be subjected to the same laws and
uSages as citizens. The right to send consul was
conceded to the Swiss government by this treaty
the condltlon being that consul should be amen,
aole 10 the same laws as our citizens He thought
Ihen tnat lt was perfectly clear under the law OF
nations, that consul or a consul general was not
entitled to the diplomatic privileges 1t was de-
cIared IN the constitution OF the United States; it
doris, other public ministers and consuls the
supreme Court shall have original Jurisdiction II
elusive jurisdiction then this court had no power
| to proceed.
THE QUESTION OF JURISDICTION
Ihis question had never been fully and squarely
met by the Supreme Court Of the United States.
but, in his opinion, the great weight OF authority,
as well as reason, was against allowing the privi-
lege, or holding that the Supreme Court has ex-
elusive jurisdiction. The judiciary act OF 1883
expressly conferred upon the district courts
OF the United States jurisdiction over
consuls, showing that the Constitution in
elusive, but with concurrent Jurisdiction only
over consuls- AS early as 1877. In the United
States district court OF Pennsylvania the question
came before the court as to whether this constItn
tional provision conferred upon the Supreme Court
exclusive Jurisdiction over consuls, and the court
Jay decided that the Jurisdiction of the supreme
Court was not exclusive. In Mr.. Conkling's trea-
,iss the same view was taken. Thequestion came
case of Davis VS.. Packard, 9TH Peters, 26, and the
supreme Court there, though not squarely deci-
ding the CASE sustained the jurisdiction OF the in
ferior court The clearest and ablest optn-
ION ION on that side OF the question that the court
VI.
In which the eminent 1urist came to the conclu,
sion that the jurisdiction OF the Supreme Court
or the United states In regard to cOnSuls was not
exclusive, but concurred with that of the circuit
and district courts. The authority OF the Penn
sylvania case referred to had been very much
shaken by some declarations by Chief Justice
Marshall in the case OF Marbury vs. Madison In
which he laid down some broad rules by which IL
would appear that jurisdiction conferred upon
the supreme Court was an exclusive Jurisdiction
This was not case involving consul, but the
court, at the close OF the long decision. decided
COhens, In Virginia, however Marshall himself
modified the rule he had laid down In this former
case, and advised the profession that broad prin-
clpleS laid down by court must not be taken as
authority unless they were called for by the case
under consideration itself and applied especially
to that case.
PRIVILEGES OF AMBASSADORS
Judge Wylie thought that the Jurisdiction con-
ferred upon the United States was a Jurisdiction
touching ambassadors, ministers and consuls as
plaintiffs. Before the Constitution was adopted
the privileges OF ambassadors were as well settled
as they are to-day The object of this provision OF
the Constitution was to confer an additional prvi-
lege, and that was when an ambassador wished to
bring suit he could go at once to the Supreme
Court OF the United States. An ambassador could
Daing suit II he chose before justice OF the
the Emperor Napoleon could bring a suit
in U. S. Circuit court, which he did. All OF the
1T was an additional privilege to permit them to
bring suit at once in the highest court of the
UnlteQ STATES Tne same language employed as
TO ambassadors was employed as to consuls. This
language gave them privilege as plaintiffs The
organization OF the Supreme Court was unsuited
70 try cases In the first instance IN the most cases
They had no machinery to sustain prosecution
for crime II foreign agents liable to suit and
prosecution, IL Is very strong argument against
the jurisdiction OF the Supreme Court. that the
organization OF the court was united to try the
great majority OF such cases. For this reason, he
was clear that II Mr.. HitZ intended to claim any
privileges by his plea, the plea would not avail
There was another branch or the case, though,
that raised.
THE PRINCIPAL QUESTION,
and that was as to the privileges OF the defendant
as political agent" Judge Wyle translated
MI. Hitz' commission or letter OF credence as
political agent, which was addressed to "the
minister OF foreign afairs.n This ONCE of political
agent was so connected with that OF consul that
whenever the one failed the other failed He sup
posed the intention Of the Swiss council was TO
attach this ONCE OF political agency In some way
to the ONCE OF consul That view rather
strengthened his conclusion that the whole plea
was q single plea and not double He did not see
on the letter the seal OF the Swiss Confederation
The credentials OF all foreign agents are attested
with the seal OF the state. II IL were the object OF
this paper to confer upon Mr.. Hitz diplomatic
character 1t would have been according 20 rule II
not Indispensable that the seal of the federation
should be attached to the letter.
After an examination OF the law he had come to
ho l1rSfn fhnf rivvsl,