The opinion of the court was delivered by: Waite, C. J.
B. F. Butler and O. D. Barrett, for petitioner.
R. Ross Perry and A. S. Worthington, for respondent.
This is an application by Mr. John Hitz for a writ of certiorari, commanding the supreme court of the district of Columbia to certify to this court an indictment and the proceedings thereunder against him in that court, on the ground that when the indictment was filed, and when the offenses therein charged were committed, he was the diplomatic representative of the Swiss Confederation, duly accredited to and received and recognized by the United States, under the title of political agent. The indictment was filed on the seventeenth of June, 1881.
From the return which has been made to the rule to show cause it appears that the indictment is for an offense against the provisions of section 5209 of the Revised Statutes, alleged to have been committed by Mr. Hitz while and as president of the German-American National Bank of Washington. It also appears that he was for many years the consul general of the Swiss Confedation within the United States, and that on the twenty-eighth of February, 1868, he was accredited to the United States by the same government as political agent. On the thirtieth of May, 1881, he was requested by the Swiss Confederation to resign both these offices, and this he did on the fifteenth of June. On the twentieth of June his resignations were accepted. Precisely what the relations of Mr. Hitz to the United States were as political agent of the Swiss Confederation we have not been advised, and on application to the department of state, made on the suggestion of the court by the counsel in this proceeding, we are informed that the records of the department show nothing upon this subject except a letter from him under date of March 30, 1868, inclosing his letter of credence, and soliciting an interview with the secretary of state for its formal presentation; the answer of Secretary Seward according such an interview, and fixing the second of April as the time; and a letter from Secretary Fish to Mr. Hitz, under date of June 28, 1870, informing him that he (the secretary) did not find, in his relations to the United States, any ground for continuing the privilege to him of a free entry of goods imported for his use.
Under these circumstances, as the writ of certiorari, when applied for by a defendant, is not a writ of right, but discretionary with the court, (Bac. Abr. 'Certiorari,') A,) we deny this application, leaving the parties to such remedies as they may be entitled to elsewhere, or under any other form of proceeding.
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