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

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and as the necessities OF legislation demand oniy
aat me person and presence OF me egseo az az ts s
scene of his duty shall be secured by neeuon VI s
claim OF immunity from mental care ,,,a and
transasion sne result "puosed to practical reality
and is fancful and imaginary; and as the exemption
of the debtor from the ordinary process of the law
is in derogaon OF the right OF the creditor,
and therefore should be strictly limited to the actual
necessity which beges it, there is warrant upon
general reasoning, for charging the term .arrest"
beyond its usual significance or corporal seizure.
se tine az n Sar there
| has been found no case In which the constitu-
tlona exemption Of Senator'S or, and Representa-.
judicial construction. THAI is the case OF Andrew
| McKenna We. William sprague in the Supreme
cded In the present year. the full record Of which Is
before me. In that case the defendant Senator OF
the United States from Rhode Island being In Wash
| ingon In attendance the Congress OF the United
States, was served with summons to appear and
answer the SUIT Of the plaintiff for debt; and he
thereupon moved the Court to dismiss the suit che
being nov and at the time Of issuing and serving OF
SAID writ In attendance at the Congress OF
the United States, of which he is a members
Upon argument the motion was overrued and the de.
fendant pleaded to the action. Though no opinion
OF the Court is contained IN the record have
no difficulty in seeing that the judicial mind was
distinctly brought to the consideration OF the only
OF the constitution in the use OF the word arrestu
Now, when we consider the local jurisdiction of
the Court by which the Judgment was pronounced,
In connection with the great Importance which the
question assumes In that jurisdiction where every
Senator ana Representative in Congress is for the
est which the whole body OF the national
Legislature, many of whose members are distin-
gnshed lawyers, must take in the right decision OF
point involving their personal privilege ana when
nounced by Court existing only by Virtue OF Con.
gressonal law, and whose errors OF Judgment may
instantly be corrected as to future cases by decari.
weight OF this decision as one aecting grave inter-
ests made after solemn argument and quietly acqui
eSced H. While the most careful researches OF coun
sci have failed bring TO the notice OF the Court any
| other authority directly upon the point, some other
cases in close analogy to this have been cited and
| deserve notice here.
In Kentucky the State constitution contains
| clause exempting members OF the Legislature from
arrest in precisely the terms used in the
stitution Of the United States Afterwards act Of
Assembly enlarged the privilege by enactlng that
! directly or indirectly, by any ways or means what
ever, arrest assault. menace or otherwise disturb
! the person OF member during his privilege, except
on legal process for treason felony or breach Of the
| peace"
| was member Of the Legislature and while attend
| ing its deliberations summons and petition for
| ege IN abatement Of the writ. The plea was held
bad demurrer and the case was taken to the Court
of Appeals In that Courtit seems to have been con-
| coded that the constitutional exemption from ''ar
/ rest" did not include the of the writ Of
| summons and the petition; but 1t was contended
| that they were embraced In the statutory extern
| SION OF the privilege. In their opinion the Court
say.-'If the act does include this writ in question
IL must be under the expression or otherwise dis
turb the person." It must be admitted that the
pressons OF the act are very broad when the words
whatever" are taken into consideration. But TREY
might be construed to an excessive eagth so as 10
although the bearer OF it might be act,ia,ed by mo,
tives OF friendship and favor and delivered nothing
but truth. 10 might yet disturb and agitate the
mind. and the execution OF writ like the pres
ent could do no more; and II might DO as pausibiy
argued that the former was as clearly included ms the
lnftn Hfth act his Al rl,pnn tn fhn
person and not the mind alone and therefore
must mean some mode OF disturbance other than
those specified in the act, OF which the sense could
there take cognZance and not such might wound |
the feelings only and In its remote consequences dis
hardly DO proper to construe the execution OF legal
process which barely notified the member to ap-
penanf so,e cour, Of sce w,ths So me acl
unless 1t had been expressly named. Such process
re ans a wnS % y s amy 70 BE-
strictly construed. 1t has been argued that consid
! cradle Inconvenience might result from this doc
/ trne 10 the members OF the General Assembly, be-
4 cause thereby they might be compelled to ltgate
their controversies at the capital instead Of In their
proper countless 1t may be replied That every cit.
who visits Frankfort ana all the other officers Of
government who do not res.dt here are liable to the
| same Inconvenience; but more forcble reply VIII
! be found IN the act ITSELF 1t did not con.
template the removal OF future inconvenience
alter the session was over, aud perhaps after the
term OF service ended: but the personal disturb
ance only to tee member during his official duties.
The design or the legislation was to restrain inroas
upon the privilege OF member In the modes pointed
out and then lest the Invention OF the turbulent and
ul.behayed might resort to some other mode not
specified but yet injurious To the member the
words were added, out OF abundant caution, "or
otherwise disturb the person." We therefore con-
ceve that the service OF the process In question lis
not within the letter, can 1t be reasonably
srued 10 be within the spirit OF the act in question,
and the court below dld right IN oVerrunS the plea
OF privilege" -
only that the word 'arrest" did not include sum-
mons but that the spirit and intention OF the law Of
privilege. even under the use Of terms OF the most
comprehensive Specification, did not embrace pro-
cedure which could only disturb and agtate the
mind
legged from arrest In all cases except treason felony
aud breach oi the peace and 1t Is also declared by
statute tbat where c3p,as requires, no
unnecessary" but reading the writ or giving n
copy snail be good service. In the case OF Legrand
Va. Bedinger, Monroe. $50 the defendant sued
by writ OF cGpidS. In covenant with endorsement
that no bail was required. The defendant being ia
| attendance the Court as witness, pleaded HIS
privilege in abatement, and the Court allowed the
plea and abatcd the writ. Upon appeal TO the Court
! OF Appeals the judgment was reversed, the Court
| OF process requiring no bail, and to be served
BY NOTICE. or copy OF the process process. was r,a
| privilege Is from arrest Hence 1t Is necessary
TO inquire what is arrest In law. 1t is derived
from the French oyTeter to stop stay, and sgni.
| fees restraint OF mans person, deprivng him OF
| hs own will aud liberty and binding him 10 become
| ginning OF imprisonment And after giving the
definition OF "arrestr from the olden writers. az
compromising necessarily OF the person,
| they proceed TO say:-"These definitions and COM
mentaries upon the words taken 'cdpidtur' Tor
c0pt0s and arrest, explain their legal significance.
They do not comprehend the service OF process by
which no Imprisonment, restraint OF liberty no
bail Is required but only notice or copy OF the pro-
cess. The plea OF privilege was insufficient and
| should have been disallowed."
In the same state, IN the case OF Hart and others
w. Flynns executors Dana, 10i, the Court OF APP
| peals construed the statute (which exempts militia
men from ''arrest," saying, earnest signifies
etran OF the person restriction OF the right OF
| locomotion, which cannot be implied 10 the mere
| notification or summons on petition, or any other
service of such process By which no bail s required
nor restraint OF personal liber.yD And they over
ruled the plea la abatement which set up the priy
lege-
In the state OF south Carolina in the case OF Hon.
tDgdon w. shultz and Mckena, Harper 49, the
s,itutona Court OF that State construed the statute
which exefnpts persons attending the Superior
Courts from Arrest and says:-"The question In
this depends upon the act OF 1921, which enacts