The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1868-11-02
THE -woolLEY-xlMBEHLY CASE.

Decision Of .Indge Dobbin In tue hu'"'oie
Superior Ceurs--The Motion :" sae"'e 'ne
Writs Dismissed. -
In the s,neror Court OF Baltimore Nd, en-
.Sa,nrd,v indigo Dobbin delivered the following de-
c,son i, the matter OF the suits Instituted against
s,ana,s, T,ntIer by Charles W. Wooiey and Kimberley
= Brother the pending question being motion to
vxcate the yrits served upon General Butler the
rroand OF exemption by virtue OF his being mem
Der OF Congress:-
charles ~; Wool1ey rs. Benjamin r. Butler, ana
Efarard KiaboTiy ana W0lida IT. Kimberly U.s.
Ianjanfl 4. Bittlt1,-rhese are personal actions In
etituted In this court. The first is for an alleged
false Imprisonment OF the plaintiff by the defendant
IA the city OF Washington, and the other is for an
alleged Indebtedness by the defendant 10 the plain
tiGs, growing, was stated in the argument out OF
TRANSACTION which took place at Fortress Monroe.
The defendant Is member OF the House OF Rep
resentatySs OF the present Congress OF the United
States from the State OF Massachusetts ana was
seated in tue cars passing through Baltimore his
way 10 his home Immediately after the adjournment
OF summons with aicopy Of the declaration in each
case were served upon him by the shenG and re-
surn made by that officer accordingly The defend
ant has now moved the Court TO declare the service
OF tho writs ana declarations Illegal, nolllcous and
nuiiities IN law and that the return Of the sheriff
may be set aside vacated and quaslcd.
lii Difference 10 the opinion OF the counsel on both
sides engaged in these causes that they presented
points OF unusual public interest," and importance, !
suspended the operation OF the rule OF court limit
hug tao duration OF arguments end have patiently
listened 10 on extended learned and exhaustive dis.
cusson; and II. in The opinion am about 10 deliver,
do not advert TO all the points winch were pressed
upon me- 1t Is not because | have not considered
then but because having carefully done 20, have
reached the conclusion that the case lies within a
much narrower compass than Was assumed in the
argument.
Inc reasons alleged in support OF these motions
are
FrSt-That the defendant, being a member OF Con-
Fress is privileged from arrest, under the sixth
tlon or the first article of the constitution of the
United States, and that the term ''arrest,'i thus
used, conprehends not only restraint OF the per-
son but service OF a summons, which only gives
notice Of the institution of Il SUIT: and
SecOhd-Ihat independently OF the constitution he
ls privileged from arrest the service Of a summons
by the general policy OF the law which eXempts egis
lators suitors jurors, witnesses Judges ATTORNEYS
and al persons actually engaged In attending to
pubic duty, while they are SO attending, and In
gong 70 and returning from the place OF the per-
Torrance OF that duty especially when such arrest
rs made III a jurisdiction other than that OF their
Aomicle.
sons we have presented to rs naked question OF
construction of the constitution OF the United States
which apply ankle to that instrument to State con-
stltutions and to public general statutes The sec.
tion In question reads thus
They Senators and Representatives. shall all cases.
eicept reason felony breach peace privileged
from arrest Daring their attendance The session OF their
same, &c.
large part OF the argument was expended In as
screaming and defining what were formerly and are
now the privileges OF members OF the British Para-
Ment; but however instructive ana interesting, in
merely historical point OF view, such an inquiry NAV
BE- tue question here is simply what il the mean.
ing Oh the word 'arrest' used in the constitution,
Anu what was the intention OF the trainers OF that in
etrument In 20 using it,
No enlightened mind can easily undervaue the
importance 10 the nation OF securing the personal
attendance aud services OF those OF its citizens who
by reason OF their fitness for the Office, may be
chosen TO make laws for our government.
Not only is this attendance necessary to be &C.
cured from molestation growing out or the ordi-
nary transactions or business, but 1t is essential
also to guard the persons OF public servants from
any interference instgated by political aud parti-
san zeal, when the arrest and Imprisonment of a
public servant might be accomplished under the
Fnise OF an ordinary civil suit, NJ a moment when
his presence at the place OF his duty might be OF The
highest importance To the country. Thus far, then.
we may be safe In assuming that the makers OF the
constitution meant 10 CO. and that they intended
ty this provision Of the constitution TO secure the
persons or Senators and Representatives from any
moestatlon or arrest except for the commission OF
crime. Did they mean TO 20 further, and prohibit
Nc servants though that process may operate oniy
~ notification OF the institution OF suit
The most obvious suggestion OF the mind In the
Consideration OF this subject Ia II They did so
mean, IL being such wide enlargement OF tho term
used why dld they not use words mere apt for the
expression or that ntent,on TO the constitution
generally awarded the merit OF using III and well
chosen phraseology TO express as meaning. At the
eebt obtained In every state which was to become a
party 70 It, and the term arrest was Wen un-
derstood TO apply only 10 the act by which I'M
prisonment was commenced II Is legal term
OF technical and definite Specification, Implying
restraining OF the person and under the canon OF
interpretation which demands that where technical
terms are used they shall be understood in their
tecnnlCal sense, we can dDpiy II only 10 In
voiving such restraint But its technical mean
ing conforms also dto Its common Specification,
Tor no ono Is Understood TO be ''arrestedn VINO Is
merely notified. What reason be found, then,
For 50 charging the meaning OF the word arrest
~ TO include within II service OF AL legal
process, even II such process il only notIica-
zion OF the commencement Of suit and
warning To the party SO notified 10 appear at
seet his neres The ground UPON ~ When ts eS
tensioL of meaning IL claimed Is stated 10 that for
tne pubic good such persons shonld be free from
n.ftar Ia lao Ia haffa
able 70 attend 10 their public duties This reason
would have much more favor II We found u TO lie a
practical reality that Senators and Representatives
do IN fact 80 segregate themselves nom the disturb
tng cares ~ private business that Their sole devotion
os TO their public duties. Instead 81 TINS we them
carving On during the period Of their public ser
vice, AZ tn various aNocations which they Gus
tomarily pursue IN private lie. They rianulac-
ture tues import goods they buy, tley sell, either
ny themselves or through trusted agents. and the
Ieports Of The supreme Court q the United states
Will abuudan. " show That the most extensive and
absorbing professional labor Is perfectly consistent
with faithful devotion TO public Legislative duty.
Nor ~ this attention 10 private business NJ 81 incon
Sisent with the true theory OF representative
eminent such ours. 1t is claimed as one ~ The
meTts " our system that the representatives, Of
she people In our legislative assemblies
chosen fresh nom among their constituents,
for short periods OF service, and are constantly
OF the makers OF the constitution that these repre-
sentatiycs should be so separated from their former
business relations TO society that the first duty or the
elect would b. 10 wind up his araifs as TO devote
himself wholly 70 legislative labor. on the contrary,
HhHulNCluItI, uOtH nlt tuutdIOu dnu DIS Cou-
GDuci interest IN that branch OF industry, ts,sup
posed 20 be the better able TO take OF Snd adj
vance the interests Of the nation In that behalf
The active merchant viii beat know the wants OF
commerce, and the mort experienced lawyer VIII
De me most reliable counsellor In the framing OF
wise lava This theory does not admit the kUppo-
GuoD that the continued pursuit OF these vocations
qualify for public service and vet that the transac-
SoDs which they beget shall not he enforced during
shc period OF that service n such enforcement
may be obtained without Withdrawing the public
servant from the place OF his duty II this were not
%. the constitutional lawmakers would have
rusted the duty OF legislation TO separate class,
Jreed from all business relations ana The disturb.
aDces and cases sprinninR therefrOn or would at
least have provided that, during hls public service
no legislator should pursue Ms private business.
This they have not done.
II, then Senators and Representatives NAV mann.
sacture, or buy, or sell and make AL the contracts
anu bind themselves 10 all the obligations incident
q sucn business, why should they not 10 held TO
N2al responsibility for them. II such holding does
mo- withdraw their presence from the scene % their