# Bolton v. Martin

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BOLTON verʃus MARTIN.
T
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not be quafhed, upon a fuggeftion, that the Defendant, acting in this public capacity, was entitled to privilege?
The cafe was elaborately argued by Levy for the Plaintiff; and Sergeant and Bradƒord for the Defendant.
Levy reprefented the queftion to be, fimply, whether a member of the State Convention was protected, during the fefiions of that body, from being ferved with a Summons? He remarked, that there appeared to be a ftrong diftinction between the privileges of a permanent Legiflature, and thofe which might be claimed by a Convention called for a temporary purpofe : but, waving any argument arifing from that fource, he contended that there was no fimilitude between the deliberative bodies of England and Pennʃylvania; and that, confequently, the privilege of Parliament in that country, was not capable of a ftrict application in this. The Engliʃh Conftitution, confifting of three branches, was fo conftructed as to prevent the encroachments of one branch upon another, and privilege, as allowed in England, was the neceffary refult of that principle. The privilege of that Houʃe oƒ Lords, might, perhaps, be founded on immemorial ufage ; but if the members of the Houʃe oƒ Commons had not, likewife, been protected from arrefts, it is eafy to perceive, that their deliberations and decifions might, at any time, have been interrupted by the practices of the other branches of the government. But if we muft ftill be refered to the privilege of Parliament, he infifted that the protection of a member of the Houʃe oƒ Parliament, extended only to the cafe of arrefts, or perfonal reftraint, and not to the fervice of a Summons. Atk. tracts 41. 42. 43. 1 Mod. 146. S.C. Nay, we find that anciently the Courts of Juftice only took cognizance of the Privilege of Parliament, to deliver the party out of cuftody, and not to abate the fuit brought againft him 1 Black. Com. 166. Dyer 59. 56. With refpect 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 queftion might be made, whether the advantage which the public derives from the protection of its fervants againft vexatious and malicious arrefts, compenfates for the injury done by fcreening a man from the payment of his juft debts. The policy of Queen Elizabeth's obfervation, that ‘‘ he was no fit subject to the employed in her ‘‘fervice, that was fubject to other men's actions, left the might be ‘‘ thought to delay juftice.’’ deferves to be well confidered in a Republic; and it appears, indeed, to have operated confiderably, even in that kingdom, from which all our precedents on the fubject are derived. Statute after ftatute has been made framed to narrow this infraction of the common law ; and, by the influence of Lord Manʃield's eloquence, the ftatute of the 10 Geo. 3. c. 50. feems at length to have placed it upon a fafe and reafonable foundation ; for, a Peer of the moft diftinguifhed rank may, at this day, be ferved with a Summons, during the fitting of Parliament. 1 Black. Com. 166.– But even when the pretenfions of the Commons were exalted to their greateft height, it was always admitted that their privilege was given for the ​
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benefit of the people at large, and not for the benefit of the individual. Sir T. Raymn 142. How then can the intereft of the people be affected by a procefs which impofes no reftraint upon the perfon and occafions no interruption of the public bufinefs?– Nor was the privilege of the Englifh Commons ever extended by analogy to deliberative bodies. ‘Till the ftatue of 8H.6.c.1. was paffed, in the year 1427, the members of the Convocation (which was then a deliberative Affembly whofe decifions, in matters within their jurifdiction, were taken to be law) were liable to arrefts ; and to remove every doubt, whether this was merely a declaration of the ancient law, or an introduction of fomething new, 3 Black. Com. 289. fays exprefsly, that the Privilege was given by that ftatute.
If then we are to be governed by the privilege of the Britiʃh Parliament in determing this queftion this queftion, are we to receive that privilege entire,–in its duration commencing forty days before, and continuing forty days after, the Seffions ; and in its object extending to the fervant as well as to the matter? Or, are we to receive it diverfted of its more odious trappings, and purified by the wholefome reftrictions of modern ftatues? If the latter propofition prevails, we have shewn that privilege cannot protect the Defendant from the fervice of a Summons; and, with refpect to the former, though, it is true, we have adopted the municipal regulations of that nation for the fecurity of property, and the punifhment of crimes ; yet, does it follow that we are to be encumbered with the various extravagancies of their political fyftem, exhibiting to the world the abfurd portrait of a Republic, with the heterogeneous features of a Monarchy? In this country an univerfal equality is eftablifhed ; no jealous, and rival, powers, warp the legiflature ; the diftinctions of rank and degree are unknown, except, indeed, in the honorable pre-eminence which the voice of the people periodically beftows on the moft worthy ; and furely the privileges of the Sophi of Perʃia, or the Muʃti of Conʃtantinople, are as fit to be engrafted on a conftitution of this defcription, as the Privilege of the Britiʃh Peerage, or their Houfe of Commons.
But, afterall, if the effential difference in the principles of Government, fhould not be fufficient to exclude the privilege contended for, the 5 Sect. oƒ the Art. oƒ Conƒed. which has been incorporated into the new Fœderal Syftem, is tantamount to a folemn declaration, that no fuch privilege exifts: for, there, Congrefs, in defining the privilege of its members, fecures them from arreft and imprifonment, but not from the procefs of a Summons. Will it, therefore, be affereted that the Defendant, in the prefent cafe, is entitled to greater privileges, than he would have enjoyed as a member of that honorable body? The idea is contrary to reafon and propriety ; and if we muft argued from analogy, there can be no doubt that we ought rather to apply to Congreʃs for the precedent, than to the Parliament of Great Britain.
Sergeant for the Defendant.–The exemption from arreft in the cafe of members of Parliament, is totally unconnected with the ​
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political fyftem of King, Lords and Commons. It is a privilege granted for this end, that the adminiftration of the government may not be interrupted, or damaged, by the embarrafments arifing from the private affairs of thofe who are called into the public fervice ; and, as a neceffary confequence of this principle, it belongs to every national body, conftitutionally affembled for legiflative purpofes. The members of the Houfe of Commons in England would therefore have been entitled to it, even if no King, or Houfe of Lords, had been known to their conftitution, the Congrefs of the United States muft have enjoyed it, though the Articles of Confederation had been filent upon the fubject ; and the fovereigns of a free People, conversed in a fingle Houfe, are furely not lets entitled to that diftinction, than if they had only formed a third branch of the government . That the privilege is applicable to the Legiflature of Pennfylvania, muft then be acknowledged, though it certainly is not conferred by any pofitive law : Nor can it be denied to a Convention acting under the immediate fanction and authority of the people, upon a queftion of the higheft importance to the general interefts of the community. Their power, though directed to a particular object, was derived from the fame fource, which fupplies the permanent Legiflature of the State ; and their bufinefs equaly required a protection from vexations, interruptions, and intrufions. In fhort, there is a fanctly in the character of the Reprefentatives of an independent people, which is the true foundation of privilege ; and it is recognized, not only for the municipal purpofes, but, by the law of nations, for the protection of Monarchs, their Ambaffadors, and other public Minifter ; in which refpect no pofitive ftatute will be found to mention it, ‘till the reign of Queen Anne.
With refpect to the dictinction that is attempted, that the privilege is only from arrefts, and not from being impleaded, it can neither be fupported by law, nor the reafon of the cafe. The fervice of a Bill oƒ Middleʃex, which is no reftraint upon the State Convention. 2 Stra. 1094. In the cafe of Col. Pitt the whole proceedings, upon mature confideration, were done away ; 2 Stra. 990. and 2 Ld. Raym. 1113. fhews, that, though an original might be fued out, and continued down, in order to avoid the ftatute of limitations, yet the fanctity of the perfon could not, in the finaleft degree, be violated. Even the cafe which has been relied on from Atk. Tracts, declares that he fhall neither be arrefted, nor impleaded. It would, indeed, be nugatory, if an exemption from the trouble of entering fpecial bail, was all the advantage privilege conferred ; as the public fervice would ftill be left expofed to the interruptions of an anxious attendance upon a litigious fuit, and all its conconmitant circumftances, of inftructing lawyers and collecting witneffes.
Bradƒord, on the ʃame ʃide, arranged his argument under two propofitions ; 1ʃt, That fuch a thing as privilege exifted in ​
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Pennʃylvania" and 2d, That it extended to the cafe of a Summons, as well as a Capias.
I. He faid, that where there was the fame reafon, there ought to be the fame law ; and if the purpofe of privilege was to prevent a man's being drawn afide from his public duty ; or embarraffed with private cares, during his attendance upon it, that fundamental principle operated, at leaft, with as much force in Pennʃylvania as in England; and in the cafe of the State Convention (whofe bufinefs was of the moft critical nature) perhaps, more than in the cafe of any permanent deliberative Affembly. But, he afked, what writer has ever treated privilege as the refult of a form of Government, compofed of three branches? Experience contradicts the affertion. Even in England, a member of Parliament cannot plead his privilege againft a debt due to the Crown, fo fuperior is prerogative ; the privilege which the law of nations confers upon Ambaffadors, is not the refult of any particular form of Government; nor does the privilege recognized in Courts of Juftice, reft upon fo equivocal (illegible text). Is a fuiton here protected from arrefts upon any political confideration? or, can it be faid that a witnefs at this bar, owes his fecurity to the textural of the conftitution? No: Thefe are the effects of an univerfal principle, which equally applies in all Countries, and under every modification of Government ; for, when the bufinefs of the State requires the attendance of an individual at a particular place, it would be unreafonable and unjuft to expofe him to an inconveniency, which he would not have fuffered, but for that attendance;– it would be impolitic, likewife ; fr few men would be willing, on fuch terms, to engage in the public fervice.
2. The preceding argument muft ferve, likewife, to fhew, that the privilege extends to the cafe of a Summons, as well as a Capias, For, though the Defendant avoids the trouble of entering fpecial bail ; yet the former procefs, as well as the latter, will oblige him to attend the Court from which it iffues, however remote it may be from his fixed place of refidence. But, in the prefent cafe, the Defendant is not folicitous to be difcharged from the fuit, for he will engage to appear gratis in the proper county.
The difficulty, in fact, arifes from the nature and extend of the jurifdictions of our Courts. In England the jurifdiction of the King's Bench and Common Pleas being co-executive with the kingdom, thofe Courts can direct the venne to be laid in the County where the caufe of action originated. But here, our County Courts are in their nature circumfcribed ; 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 claimed ; for the act of 1766, exprefsly declares, that the venue fhall be laid in the county where the action is inftituted. The Defendant's claim, therefore, is rather the privilege of being fued in a particular Court, than an exemption either from arreft, or being impleaded, and we fay that he ought not to be fued in this ​
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Court, becaufe it was the public, and not his private, bufinefs, that bought him within its jurifdiction.
By an act paffed in the year 1684 (though fince repealed) a fummons might have been ferved in any county, at any time, with an acception ,allowing , in the cafe of a member of Affembly, a protection for the fpace of 14 days after the feffions. Shall it then be faid that any individual might compel a Judge of the Supreme Court to attend a private fuit upon the Ohio, by ferving him with a fummons, while he is difcharging his official duties on the Weʃtern circuit? We contend that the intereft of the Commonwealth requires that perfons employed if fuch fervices, fhould not be incommoded ; there is no neceffity, therefore, to derive the privilege by the analogy of other cafes; it arifes from the nature of the thing ; and many authorities fhew, that the rule is as forcible to prevent their being impleaded, as to prevent their being arrefted. 2Stra. 1994. Vin. tit. Priv. 519. A man, by the law of Pennʃylvania, may be his own council ; if he exercifes this right, is he not as much drawn from the public fervice by a Summons as by a Capias? In Mallack‘s cafe, the Court would not iffue a Subpœna to two members of the Affembly (Delaney and Hill) who were witneffes in the caufe ; but a letter was written to the Speaker, ftating the neceffity of their attendance, and a vote of the Houfe was taken to allow it. In Col. Pitt's cafe, he was entirely difcharged from a Capias, without common bail being ordered; from which it may be fairly inferred, that he ought not to have been fued at all ; as the effect of common bail, and a Summons are in that refpect, the fame.
The cafe cited from Prʃn in Alk. Tr. is not in the Year Books, and it could not have been within the knowledge of the writer, as it is faid to have happened in the regin of Edw. 3. For this reafon it bears a doubtful complexion; nor, do we know that the decifion was on the cafe before the Court ; and, at all events, there is an effential difference in privilege, when it is extended to the fervants (who have no public cares to claim their attention) and when it relates to the mafter.
Levy, in reply. He faid, that he had not affected that a member, either of the Affembly, or Convention, was liable to arreʃt during the fitting of thofe bodies ; but that he had exprefsly narrowed the queftion to this point, whether he might be ferved with a Summons? Nor had he infifted on the idea, that the Convention was not entitled to the fame privileges, which a permanent Legiflature might claim ; but merely fuggefted a diftinction for the confideration of the Court. He contended, however, that a member of the Britiʃh Houfe of Lords, fince the 10 Geo. 3. c. 50. was not entitled to the privilege claimed by the Defendant ; and, he afked, whether fuch privileges ought to be introduced and eftablifhed in Pennʃylvania, as only exifted in the dark ages of the Engliʃh government, and which the reafon and juftice of more enlightened generations had happily corrected? Finding, indeed, that they had failed in point of fact, with refpect to the exiftence of fuch a Parliamentary privilege as ​
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they claim, he faid, the adverfe council had entered elaborately into arguments ab inconvenienti. But in doing this, no anfwer had been given to the reafon for paffing the 8 H. 6.c. 1. by which ftatute, the members of the Convocation, were firft exempted from perfonal arreft.
Where, however, is the great inconveniency of a fuit, if it is not founded in malice, or inftituted in a fubordinate and incompetent jurifdiction ? neither of which can be pretended upon this occafion. Is there any thing more required, in its firft ftages, than to direct an Attorney to enter an appearance? When, indeed, the caufe is ready for trial, at the diftance of, perhaps, many months, and long after the bufinefs of a deliberative Affembly, conftituted for fimilar purpofes as our State Convention, muft be clofed, it will ne neceffary to prepare for a defence, if there is any in the caufe ; but in this fo fevere a hardfhip as to diftract a member of the Affembly, or Convention, in the profection of his duty, and to difqualify him for the public fervice in which he is employed?
Nothing appears to fhew that any other county, is a more proper county than this ; fo that the offer to appear gratis might have been fpared ; as well as the argument refpecting the venue, which is an inconveniency that extends to all cafes ; is equally felt by every citizen ; and, proving too much, it muft be taken to prove nothing.
The act of 1684, has been long repealed ; and the diftinction attempted between a Capias and Summons does not apply ; for every writ irregularly iffued muft be fet afide ; and, therefore, if a man is illegally arrefted, a common bail ought not to be ordered.
With refpect to the inftance of an application of the Speaker of the Affembly, requefting the attendance of two members, that was in the cafe of witneffes ; and as the Court, after iffuing a Subpœna, muft have compelled obedience to it by attachment, a very ferious queftion, btween the legiflative and judicial authority, was prudently avoided by the ftep then taken.
If the privilege in England is not the refult of their form of government, why does it exift forty days before, and forty days after, the feffions, in the cafe of the members for Middleʃex and London, who certainly do not require fo long a protection cuando et redeundo. But the whole argument ought to be determined by an analogous confideration of the 5 Sect. oƒ the Art oƒ Conƒed.
On the 6th of September, the PRESIDENT delivered the opinion of the Court.
SHIPPEN,Preʃident.–The queftion in this cafe, is, whether a member of Convention, refiding in a diftant county, could legally, and confiftently with the privileges of fuch a deliberative Affembly, be arrefted, or ferved with a Summons, or other procefs, out of this Court, iffued to compel his appearance to a civil action, while he remained in the city of Philadelphia, attending the duties of that office? ​
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The members of Convention, elected by the people, and affembled for a great national purpofe, ought to be confidered in reafon, and from the nature, as well as dignity, of their office, as invefted with the fame or equal immunities with the members of General Aʃʃembly, met in their ordinary legiflative capacity: and in this light I fhall confider them.
The Affembly of Pennʃylvania, being the legiflative branch of our Government, its members are legally and inherently poffeffed of all fuch privileges, as are neceffary to enable them, with freedom and fafety, to execute them. As this is a parliamentary truft, we muft neceffarily confider the Law oƒ Parliament in that country from whence we have drawn our other laws. That part of the law of Parliament, which refpects the privileges of its members, was principally eftablifhed to protect them from being molefted by their fellow fubjects, or oppreffed by the power of the Crown, and to prevent their being diverted from the public bufinefs. The parliament, in general, is the fole and exclufive judge and expofitor of its own privileges: but in certain cafes, it will happen, that they come neceffarily and incidentally before the Courts of law, and then they muft likewife judge upon them.
The origin of thefe privileges is faid by Selden to be as ancient as Edward the Confeffor.– For a long time,however, after the conqueft, we find very little, either in the books of Law, or Hiftory, upon this fubject. If there were then any regular Parliaments, their members held their privileges by a very precarious tenure. There appears, indeed, in the regins of Henry the 4th and Henry the 6th to have been fome provifions made by acts of Parliament, to protect the members from illegal and violent attacks upon their perfons. In the reign of Edward the 4th, there has been a cafe cited to fhew, that the Judges determined that a menial fervant of a member of Parliament, though privileged from actual arreft, might yet be impleaded. Although it were fairly to be inferred from the cafe, that the privilege of the fervant was equal to the privilege of the member himfelf, yet a cafe determined at fo early a period, when the rights and privilege of Parliament were fo little afcertained and defined, cannot have the fame weight as more modern authorities.
Upon an attentive perufal of the ftatute of 12&13. Will. 3.c. 3. I think, no other authority will be wanting to fhew what the law was upon this fubject, before the paffing of that act. From the whole frame of that ftatute, it appears clearly to be the fenfe of the Legiflature, that, before that time, members of Parliament were privileged from arrefts, and from being ferved with any procefs out of the Courts of law, not only during the fitting of Parliament, but during the fitting of Parliament, but during the recefs within the time of privilege ; which was a reafonabletiem eundo & redeundo. The defign of this act was not to meddle with the privileges which the members enjoyed during the ʃitting oƒ Parliament (thofe feem to have been facred) but it enacts, that aƒter the diʃʃolution, or prorogatium, of Parliament, or ​
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aƒter adjournment of both Houfes for above the fpace of fourteen days, any perfon might commence and profecute any action againft a member of Parliament, provided the perfon of the member be not arrefted during the time of privilege. The manner of bring the action againft a member of the Houfe of Commons is directed to be by Summons and diʃtreʃs inƒinite, to compel a common appearance: But even this was not to be done till after the diffolution, prorogation, or adjournment. The act further directs, that where any plaintiff fhall by reafon of privilege of Parliament by ftayed from profecuting any fuit commenced, fuch of Parliament by ftayed from profecuting any fuit commenced, fuit plaintiff fhall not be barred by the ftatute of limitations, or nonfuited, difmiffed, or his fuit difcontinued for want of profecution, but fhall upon the riʃing oƒ Parliament, be at liberty to proceed. So that beƒore the riʃing oƒ Parliament, and during the actual fitting of it, it appears, not only that, generally, a fuit could not be commenced, but,, if it had been commenced before, it could not be profecuted during that time. One exception, as to commencing the action appears to have been made by the Judges, agreeably to the fpirit and apparent intention of the act ; which is, that in order to prevent a member of Parliament from taking advantage of the ftatute of limitations by reafon of his privilege, an original might be filed againft him ; but that original muft lie dormant during the fitting of Parliament ; no procefs could iffue upon it to compel an appearance ; nor, till this act paffed, could it have been done at any time after the rifing of Parliament, during the time of privilege.
This conftruction of the act is fo obvious, that, upon any other almoft all the provifions in it would have been nugatory ; and, it fully accounts for the feeming doubt in Col. Pitt's cafe in Strange, whether he fhould be difcharged on common bail, or be difcharged altogether ; it being after the diffolution of Parliament , the plaintiff had a right, by the act, to commence a fuit againft him ; and, therefore, it feemed, at firft, that he fhould only be difcharged on common bail ; but as he had commenced his fuit by arreʃting his perʃon, before his time of privilege expired, the Judges, that they might not feem to countenance the arreft difcharged him entirely.
It is were poffible to doubt of this being the true conftruction of the act of 12 and 13. W. 3. it is made ftill clearer by the act of 2. and 3. Ann.c. 18. which directs that any action may be commenced againft a member of Parliament employed in the revenue, or other place of public truft, even during the fitting of Parliament, for any mifdemeanor, breach of truft, or penalty, relating to fuch public truft, provided his perfon be not arrefted. This act was made for this fingle purpofe and would have been likewife nugatory it an action could have been brought before, againft any member of Parliament during the fitting of the Houfe.
Black.Com. 165. was cited to fhew, that a member of Parliament might be fued for his debts, though not arrefted, during the ʃitting oƒ Parliament. This will appear to be exprefsly confined to actions at the fuit of the King, under a particular provifion in the ftatute of W. 3. ​
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and, by the ftrongeft implication, fhews, that it could not be done at the fuit of a private perfon. A little higher, in the fame page, a general pofition of Judge Blackʃtone will be found, which fully reaches the cafe in queftion. ‘‘Neither (fays he) can any member
‘‘ of either Houfe be arrefted, or taken into cuftody, nor ʃerved with
‘‘ any proceʃs oƒ the Courts oƒ Law, nor his fervants arrefted &c. without
‘‘ a breach oƒ the privilege oƒ Parliament. ’’
In the cafe before us, the Defendant appears to have been ferved with a Summons out of this Court, during the time oƒ the actual ʃitting oƒ the Convention. – Whether we take the law to be, as it ftood in England before, and at the time of paffing the act of W. 3. ; or as it ftood after the paffing that act down to the 10th oƒ Geo. 3. about fix years before our revolution, it is clear that no members of Parliament, other than thofe particulary excepted, could be arreʃted or ʃerved with any proceʃs out of the Courts of Law, during the ʃitting oƒ Parliament.
We cannot but confider our Members of Affembly, as they have always confidered themfleves, initled by law to the fame privileges. They ought not to be diverted from the public bufinefs by law fuits, brought againft them during the fitting of the Houfe ; which, though not attended with the arreft of their perfons, might yet oblige them to attend to thofe law fuits, and to bring witneffes from a diftant county, to a place whither they came, perhaps foldly, on account of that public bufinefs.
The Defendant, therefore, muft be difcharged from the action.