The Defendant was one of the members from Bedford county, in the
State convention, which assembled at Philadelphia, to take into
consideration the adoption, or rejection, of the constitution
proposed for the Government of the United States, by the Federal
Convention on the 17th of September 1787. During his attendance
upon this duty, he was served with a Summons at the suit of the
Plaintiff; and Sergeant obtained a rule to shew cause, why the
Process should
Page 1 U.S.
296, 297
not be quashed upon a suggestion, that the Defendant; acting in
this public capacity, was entitled to privilege? The case was
elaborately argued by Levy for the Plaintiff; and Sergeant and
Bradford for the Defendant. Levy represented the question to be,
simply, whether a member of the State Convention was protected,
during the sessions of that body, from being served with a Summons?
He remarked, that there appeared to be a strong distinction between
the privileges of a permanent Legislature, and those which might be
claimed by a Convention called for a temporary purpose: but, waving
any argument arising from that source, he contended that there was
no similitude between the deliberative bodies of England and
Pennsylvania; and that, consequently, the privilege of Parliament
in that country, was not capable of a strict application in this.
The English Constitution, consisting of three branches, was so
constructed as to prevent the encroachments of one branch upon
another, and privilege, as allowed in England, was the necessary
result of that principle. The privilege of the House of Lords,
might, perhaps, be founded on immemorial usage; but if the members
of the House of Commons had not, likewise, been protected from
arrests, it is easy to perceive, that their deliberations and
decisions might, at any time, have been interrupted by the
practices of the other branches of the government. But if we must
still be refered to the privilege of Parliament, he insisted that
the protection of a member of the House of Parliament, extended
only to the case of arrests, or personal restraint, and not to the
service of a Summons. Atk. tracts 41. 42. 43. 1 Mod. 146. S.C. Nay,
we find that anciently the Courts of Justice only took cognizance
of the privilege of Parliament, to deliver the party out of
custody, and not to abate the suit brought against him 1 Black.
Com. 166. Dyer 59.56. With respect to the nature of privilege, he
argued, that, in modern times, it was become an odious and
unpalatable doctrine; and that if it were res nova, a very doubtful
question might be made, whether the advantage which the public
derives from the protection of its servants against vexatious and
malicious arrests, compensates for the injury done by screening a
man from the payment of his just debts. The policy of Queen
Elizabeth's observation, that 'he was no fit subject to be employed
in her service, that was subject to other men's actions, left she
might be thought to delay justice,'* deserves to be well considered
in a Republic; and it appears, indeed, to have operated
considerably, even in that kingdom, from which all our precedents
on the subject are derived. Statute after statute has been framed
to narrow this infraction of the common law; and, by the influence
of Lord Mansfield's eloquence, the statute of the 10 Geo.3.c.50.
seems at length to have placed it upon a safe and reasonable
foundation; for, a Peer of the most distinguished rank may, at this
day, be served with a Summons, during the sitting of Parliament. 1
Black. Com. 166. But even when the pretensions of the Commons were
exalted to their greatest height, it was always admitted that their
privilege was given for the
Page 1 U.S.
296, 298
benefit of the people at large, and not for the benefit of the
individual. Sir T. Raym. 142. How then can the interest of the
people be affected by a process which imposes no restraint upon the
person, and occasions no interruption of the public business? Nor
was the privilege of the English Commons ever extended by analogy
to other deliberative bodies. Till the statute of 8 H. 6. c. 1. was
passed, in the year 1427, the members of the Convocation (which was
then a deliberative Assembly whose decisions, in matters within
their jurisdiction, were taken to be law) were liable to arrests;
and to remove every doubt, whether this was merely a declaration of
the ancient law, or an introduction of something new, 3 Black. Com.
289. says expressly, that the Privilege was given by that statute.
If then we are to be governed by the privilege of the British
Parliament in determining this question, are we to receive that
privilege entire, in its duration commencing forty days before, and
continuing forty days after, the Sessions; and in its object
extending to the servant as well as to the master? Or, are we to
receive it divested of its more odious trappings, and purified by
the wholesome restrictions of modern statutes? If the latter
proposition prevails, we have shewn that privilege cannot protect
the Defendant from the service of a Summons; and, with respect to
the former, though, it is true, we have adopted the municipal
regulations of that nation for the security of property, and the
punishment of crimes; yet, does it follow that we are to be
encumbered with the various extravagancies of their political
system, exhibiting to the world the absurd portrait of a Republic,
with the heterogeneous features of a Monarchy? In this country an
universal equality is established; no jealous, and rival, powers,
warp the legislature; the distinctions of rank and degree are
unknown, except, indeed, in the honorable pre-eminence which the
voice of the people periodically bestows on the most worthy; and
surely the privileges of the Sophi of Persia, or the Musti of
Constantinople, are as fit to be engrated on a constitution of this
description, as the Privilege of the British Peerage, or their
House of Commons. But, after all, if the essential difference in
the principles of Government, should not be sufficient to exclude
the privilege contended for, the 5 Sect. of the Art. of Confed.
which has been incorporated into the new Federal System, is
tantamount to a solemn declaration, that no such privilege exists:
for, there, Congress in defining the privilege of its members,
secures them from arrest and imprisonment, but not from the process
of a Summons. Will it, therefore, be asserted that the Defendant,
in the present case, is entitled to greater privileges, than he
would have enjoyed as a member of that honorable body? The idea is
contrary to reason and propriety; and if we must argue from
anaology, there can be no doubt that we ought rather to apply to
Congress for the precedent, than to the Parliament of Great
Britain. Sergeant for the Defendant. The exemption from arrest in
the case of members of Parliament, is totally unconnected with the
political
Page 1 U.S.
296, 299
system of King, Lords, and Commons. It is a privilege granted
for this end that the administration of the government may not be
interrupted, or damaged, by the embarrasments arising from the
private affairs of those who are called into the public service;
and, as a necessary consequence of this principle, it belongs to
every national body, constitutionally assembled for legislative
purposes. The members of the House of Commons in England would
therefore have been entitled to it, even if no King, or House of
Lords, had been known to their constitution; the Congress of the
United States must have enjoyed it, though the Articles of
Confederation had been silent upon the subject; and the sovereigns
of a free People, convened in a single House, are surely not less
entitled to that distinction, than if they had only formed a third
branch of the government. That the privilege is applicable to the
Legislature of Pennsylvania, must then be acknowledged, though it
certainly is not conferred by any positive law: Nor can it be
denied to a Convention acting under the immediate sanction and
authority of the people, upon a question of the highest importance
to the general interests of the community. Their power, though
directed to a particular object, was derived from the same source,
which supplies the permanent Legislature of the State; and their
business equally required a protection from vexations,
interruptions, and intrusions. In short, there is a sancitity in
the character of the Representatives of an independent people,
which is the true foundation of privilege; and it is recognized,
not only for municipal purposes, but, by the law of nations, for
the protection of Monarchs, their Ambassadors, and other public
Ministers; in which respect no positive statute will be found to
mention it, till the reign of Queen Anne.* With respect to the
dictinction that is attempted, that the privilege is only from
arrests, and not from being impleaded, it can neither be supported
by law, nor the reason of the case. The service of a Bill of
Midlesex, which is no restraint upon the Person, was held to be a
breach of privilege, under circumstance infinitely less important,
than an attendance upon the State Convention, 2 Stra. 1094. In the
case of Col. Pitt, the whole proceedings, upon mature
consideration, were done away; 2 Stra. 990. and 2 Ld. Raym, 1113.
shews, that, though an original might be sued out, and continued
down, in order to avoid the statute of limitations, yet the
sanctity of the person could not in the smallest degree, be
violated. Even the case which has been relied on from Atk. Tracts,
declares that he shall neither be arrested, nor impleaded. It
would, indeed, be nugatory, if an exemption from the trouble of
entering special bail, was all the advantage privilege conferred;
as the public service would still be left exposed to the
interruptions of an anxious attendance upon a litigious suit, and
all its concomitant circumstances, of instructing lawyers and
collecting witnesses. Bradford, on the same side, arranged his
argument under two propositions; 1st, that such a thing as
privilege existed in Pennsylvania;
Page 1 U.S.
296, 300
and 2nd, that it extended to the case of a Summons, as well as a
Capias. 1. He said, that where there was the same reason, there
ought to be the same law; and if the purpose of privilege was to
prevent a man's being drawn aside from his public duty, or
embarrassed with private cares, during his attendance upon it, that
fundamental principle operated, at least, with as much force in
Pennsylvania as in England; and in the case of the State Convention
(whose business was of the most critical nature) perhaps, more than
in the case of any permanent deliberative Assembly. But, he asked,
what writer has ever treated privilege as the result of a form of
Government, composed of three branches? Experience contradicts the
assertion. Even in England, a member of Parliament cannot plead his
privilege against a debt due to the Crown, so superior is
prerogative; the privilege which the law of nations confers upon
Ambassadors, is not the result of any particular form of
Government: nor does the privilege recognized in Courts of Justice,
rest upon so equivocal a bases. Is a suitor here protected from
arrests upon any political consideration? Or, can it be said that a
witness at this bar, owes his security to the texture of the
constitution? No: These are the effects of an universal principle,
which equally applies in all Countries, and under every
modification of Government; for, when the business of the State
requires the attendance of an individual at a particular place, it
would be unreasonable and unjust to expose him to an inconveniency,
which he would not have suffered, but for that attendance; it would
be impolitic, likewise; for few men would be willing, on such
terms, to engage in the public service. 2. The preceding argument
must serve, likewise, to shew, that the privilege extends to the
case of a Summons, as well as a Capias. For, though the Defendant
avoids the trouble of entering special bail; yet the former
process, as well as the latter, will oblige him to attend the Court
from which it issues, however remote it may be from his fixed place
of residence. But, in the present case, the Defendant is not
solicitous to be discharged from the suit, for he will engage to
appear gratis in the proper county. The difficulty, in fact, arises
from the nature and extent of the jurisdictions of our Courts. In
England the jurisdiction of the King's Bench and Common Pleas,
being co-extensive with the kingdom, those Courts can direct the
venue to be laid in the County where the cause of action
originated. But here, our County Courts are in their nature
circumscribed; and it has lately been determined in the Supreme
Court, on a motion by Mr. Sergeant to change the venue from Bucks
to Philadelphia, that even there, this relief could not be
obtained; for the act of 1766,* expressly declares, that the venue
shall be laid in the county where the action is instituted. The
Defendant's claim, therefore, is rather the privilege of being sued
in a particular Court, than an exemption either from arrest, or
being impleaded; and we say that he ought not to be sued in
this
Page 1 U.S.
296, 301
Court, because it was the public, and not his private, business,
that brought him within its jurisdiction. By an act passed in the
year 1684, (though since repealed) a summons might have been served
in any county, at any time, with an exception, allowing, in the
case of a member of Assembly, a protection for the space of 14 days
after the sessions. Shall it then be said that any individual might
compel a Judge of the Supreme Court to attend a private suit upon
the Ohio, by serving him with a summons, while he is discharging
his official duties on the Western circuit? We contend that the
interest of the Commonwealth requires that persons employed in such
services, should not be incommoded; there is no necessity,
therefore, to derive the privilege by the analogy of other cases;
it arises from the nature of the thing; and many authorities shew,
that the rule is as forcible to prevent their being impleaded, as
to prevent their being arrested. 2 Stra. 1094. Vin. tit. Priv. 519.
A man, by the law of Pennsylvania, may be his own council; if he
exercises this right, is he not as much drawn from the public
service by a Summons as by a Capias? In Matlack's case, the Court
would not issue a Subpoena to two members of the Assembly (Delaney
and Hill) who were witnesses in the cause; but a letter was written
to the Speaker, stating the necessity of their attendance, and a
vote of the House was taken to allow it. In Col. Pitt's case, he
was entirely discharged from a Capias, without common bail being
ordered; from which it may be fairly inferred, that he ought not to
have been sued at all; as the effect of common bail, and a Summons
are, in that respect, the same. The case cited from Pryn in Atk.
Tr. is not in the Year Books, and it could not have been within the
knowledge of the writer, as it is said to have happened in the
reign of Edw. 3. For this reason it bears a doubtful complexion;
nor, do we know that the decision was on the case before the Court;
and, at all events, there is an essential difference in privilege,
when it is extended to the servants (who have no public cares to
claim their attention) and when it relates to the master. Levy, in
reply. He said, that he had not asserted that a member, either of
the Assembly, or Convention, was liable to arrest during the
sitting of those bodies; but that he had expressly narrowed the
question to this point, whether he might be served with a Summons.
Nor had he insisted on the idea, that the Convention was not
entitled to the same privileges, which a permanent Legislature
might claim; but merely suggested a distinction for the
consideration of the Court. He contended, however, that a member of
the British House of Lords, since the 10 Geo. 3. c. 50. was not
entitled to the privilege claimed by the Defendant; and, he asked,
whether such privileges ought to be introduced and established in
Pennsylvania, as only existed in the dark ages of the English
government, and which the reason and justice of more enlightened
generations had happily corrected? Finding, indeed, that they had
failed in point of fact, with respect to the existence of such a
Parliamentary privilege as
Page 1 U.S.
296, 302
they claim, he said, the adverse council had entered elaborately
into arguments ab inconvenienti. But in doing this, no answer had
been given to the reason for passing the 8 H. 6. c. 1. by which
statute, the members of the Convocation, were first exempted from
personal arrest.
Where, however, is the great inconveniency of a suit, if it is
not founded in malice, or instituted in a subordinate and
incompetent jurisdiction? neither of which can be pretended upon
this occasion. Is there any thing more required, in its first
stages, than to direct an Attorney to enter an appearance? When,
indeed, the cause is ready for trial, at the distance of, perhaps,
many months, and long after the business of a deliberative
Assembly, constituted for similar purposes as our State Convention,
must be closed, it will be necessary to prepare for a defence, if
there is any in the cause; but is this so severe a hardship as to
distract a member of the Assembly, or Convention, in the
prosecution of his duty, and to disqualify him for the public
service in which he is employed?
Nothing appears to shew that any other county, is a more proper
county than this; so that the offer to appear gratis might have
been spared; as well as the argument respecting the venue, which is
an inconveniency that extends to all cases; is equally felt by
every citizen; and, proving too much, it must be taken to prove
nothing.
The act of 1684, has been long repealed; and the distinction
attempted between a Capias and Summons does not apply; for every
writ irregularly issued must be set aside; and, therefore, if a man
is illegally arrested, common bail ought not to be ordered.
[302-Continued.]
With respect to the instance of an application to the Speaker of
the Assembly, requesting the attendance of two members, that was in
the case of witnesses; and as the Court, after issuing a Subpeona,
must have compelled obedience to it by attachment, a very serious
question, between the legislative and judicial authority, was
prudently avoided by the step then taken.
If the privilege in England is not the result of their form of
government, why does it exist forty days before, and forty days
after, the sessions, in the case of the members for Midlesex and
London, who certainly do not require so long a protection eundo et
redeundo. But the whole argument ought to be determined by an
analogous consideration of the 5 Sect. of the Art. of Confed.
On the 6th of September, the President delivered the opinion of
the Court.
Shippen, President.
The question in this case is, whether a member of Convention,
residing in a distant county, could legally, and consistently with
the privileges of such a deliberative Assembly, be arrested, or
served with a Summons, or other process, out of this Court, issued
to compel his appearance to a civil action, while he remained in
the city of P iladelphia, attending the duties of that office?
Page 1 U.S.
296, 303
The members of Convention, elected by the people, and assembled
for a great national purpose, ought to be considered in reason, and
from the nature, as well as dignity, of their office, as invested
with the same or equal immunities with the members of General
Assembly, met in their ordinary legislative capacity: And in this
light I shall consider them. The Assembly of Pennsylvania, being
the legislative branch of our Government, its members are legally
and inherently possessed of all such privileges, as are necessary
to enable them, with freedom and safety, to execute the great trust
reposed in them by the body of the people who elected them. As this
is a parliamentary trust, we must necessarily consider the Law of
Parliament in that country from whence we have drawn our other
laws. That part of the law of Parliament, which respects the
privileges of its members, was principally established to protect
them from being molested by their fellow subjects, or oppressed by
the power of the Crown, and to prevent their being diverted from
the public business. The parliament, in general, is the sole and
exclusive judge and expositor of its own privileges: but, in
certain cases, it will happen, that they come necessarily and
incidentally before the Courts of law, and then they must likewise
judge upon them. The origin of these privileges is said by Selden
to be as ancient as Edward the Consellor. For a long time, however,
after the conquest, we find very little, either in the books of
Law, or History, upon this subject. If there were then any regular
Parliaments, their members held their privileges by a very
precarious tenure. There appears, indeed, in the reigns of Henry
the 4th and Henry the 6th to have been some provisions made by acts
of Parliament, to protect the member from illegal and violent
attacks upon their persons. In the reign of Edward the 4th, there
has been a case cited to shew, that the Judges determined that a
menial servant of a member of Parliament, though privileged from
actual arrest, might yet be impleaded. Although it were fairly to
be inferred from the case, that the privilege of the servant was
equal to the privilege of the member himself, yet a case determined
at so early a period, when the rights and privileges of Parliament
were so little ascertained and defined, cannot have the same weight
as more modern authorities. Upon an attentive perusal of the
statute of 12 & 13. Will. 3. c. 3. I think, no other authority
will be wanting to shew what the law was upon this subject, before
the passing of that act. From the whole frame of that statute, it
appears clearly to be the sense of the Legislature, that, before
that time, members of Parliament were privileged from arrests, and
from being served with any process out of the Courts of law, not
only during the sitting of Parliament, but during the recess within
the time of privilege; which was a reasonable time eundo &
redeundo. The design of this act was not to meddle with the
privileges which the members enjoyed during the sitting of
Parliament (those seem to have been held sacred) but it enacts,
that after the dissolution, or prorogation, of Parliament, or
Page 1 U.S.
296, 304
after adjournment of both Houses for above the space of fourteen
days. any person might commence and prosecute any action against a
member of Parliament, provided the person of the member be not
arrested during the time of privilege. The manner of bringing the
action against a member of the House of Commons is directed to be
by Summons and distress infinite, to compel a common appearance:
But even this was not to be done till after the dissolution,
prorogation, or adjournment. The act further directs, that where
any plaintiff shall by reason of privilege of Parliament by stayed
from prosecuting any suit commenced such plaintiff shall not be
barred by the statute of limitations, or nonsuited, dismissed, or
his suit discontinued for want of prosecution, but shall, upon the
rising of Parliament, be at liberty to proceed. So that before the
rising of Parliament, and during the actual sitting of it, it
appears, not only that, generally, a suit could not be commenced,
but, if it had been commenced before, it could not be prosecuted
during that time. One exception, as to commencing the action
appears to have been made by the Judges, agreeably to the spirit
and apparent intention of the act; which is, that in order to
prevent a member of Parliament from taking advantage of the statute
of limitations by reason of his privilege, an original might be
filed against him; but that original must lie dormant during the
sitting of sparliament; no process could issue upon it to compel an
appearance; nor, till this act passed, could it have been done at
any time after the rising of Parliament, during the time of
privilege. This construction of the act is so obvious, that, upon
any other, almost all the provisions in it would have been
nugatory; and it fully accounts for the seeming doubt in Col.
Pitt's case in Strange, whether he should be discharged on common
bail, or be discharged altogether; it being after the dissolution
of Parliament, the plaintiff had a right, by the act, to commence a
suit against him; and, therefore, it seemed, at first, that he
should only be discharged on common bail; but as he had commenced
his suit by arresting his person, before his time of privilege
expired, the Judges, that they might not seem to countenance the
arrest, discharged him entirely. If it were possible to doubt of
this being the true construction of the act of 12 and 13. W. 3. it
is made still clearer by the act of 2. and 3. Ann. c. 18. which
directs that any action may be commenced against a member of
Parliament employed in the revenue, or other place of public trust,
even during the sitting of Parliament, for any misdemeanor, breach
of trust, or penalty, relating to such public trust, provided his
person be not arrested. This act was made for this single purpose,
and would have been likewise nugatory, it an action could have been
brought before, against any member of Parliament during the sitting
of the House. Black. Com. 165. was cited to shew, that a member of
Parliament might be sued for his debts, though not arrested, during
the sitting of Parliament. This will appear to be expressly
confined to actions at the suit of the King, under a particular
provision in the statute of W. 3.
Page 1 U.S.
296, 305
and, by the strongest implication, shews, that it could not be
done as the suit of a private person. A little higher, in the same
page, a general position of Judge Blackstone will be found, which
fully reaches the case in question. 'Neither (says he) can any
member of either House be arrested, or taken into custody, nor
served with any process of the Courts of Law, nor his servants
arrested &c. without a breach of the privilege of
Parliament.'
In the case before us, the Defendant appears to have been served
with a Summons out of this Court, during the time of the actual
sitting of the Convention. Whether we take the law to be, as it
stood in England before, and at the time of passing the act of W.
3.; or as it stood after the passing that act down to the 10th of
Geo. 3. about six years before our revolution, it is clear that no
member of Parliament, other than those particularly excepted, could
be arrested or served with any process out of the Courts of Law,
during the sitting of Parliament.
We cannot but consider our Members of Assembly, as they have
always considered themselves, intitled by law to the same
privileges. They ought not to be diverted from the public business
by law suits, brought against them during the sitting of the House;
which, though not attended with the arrest of their persons, might
yet oblige them to attend to those law suits, and to bring
witnesses from a distant county, to a place whither they came,
perhaps solely, on account of that public business.
The Defendant, therefore, must be discharged from the action.
*
The rule was discharged.
Footnotes
[
Footnote *] See Co. Litt. 131.
[
Footnote *] See 7 Ann. c. 12. and
the history of that statute in 1 Bl. Com. 255.
[
Footnote *] See 1 State Laws 114.
and 338.
[
Footnote *] Since these Reports
were committed to the Pres, I have been favored with a note of
another case in this Court, upon the question of privilege; and, I
hope, I shall be excused for introducing it here.
Caldwell versus Barclay et al.
Foreign Attachment. Moylan obtained a rule to shew cause why
this Attachment should not be quashed, on the ground that one of
the Defendant's, Barclay, being an American consul, and in that
character actually residing abroad in the public service, was not
within the description of persons, whose effects were made liable
to a Foreign Attachment by the act of Assembly.
The rule was opposed by Wilson, Bradford, and Sergeant, who
contended, that as a Consul, Barclay was not entitled, by the law
of nations, to any privilege, or exemption from legal process;
that, even if he was privileged on account of his official
character, he had lost that advantage, by his partnership with the
other Defendant, who was not entitled to it; and that the act of
Assembly makes no difference between persons serving their country
abroad, and any other non-residents.
After the able argument, the opinion of the Court was delivered
by Mr. President, Shippen; agreeably to which
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