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


transaction OF Its own business, exercises dscre
tonary power to secure the unmoested presence OF
the necessary attendants upon IT, and the case or
representative who claims his privileges upon the
terms OF an express enactment. In tho former the
power 10 purely discretionary and has been
yersity Of the Ae cases seemed to demand. and
II only necessary 10 look at the different results
reached and TIE reasons given Thereon to seq rnas
no consistent rule can be dednte1 from them On
the other hand p the case OF a Senator or Repre-
sentative his privilege Is granted by the consttu-
tion, and the extent OF the exemption must be as
certllned by proper construction OF that tnstrl-
ment. II the exemption by the force Of public law
Is more comprehensive than the terms OF the consti
tuition and existed outside OF It, 1t was not necessary
to define the privilege at all In the constitutions; II
the constitutional exemption is more restricted than
that by public law, then it must be presumed that
the makers OF the constitution intended to define
and restrain, by its provisions what was before in
definite and largely discretionary.
TO confer upon the courts the power now claimed
to interpret the constitution, not by the plain ana
easily understood words used In 1t, but BY system
OF so-calied public law existing outside OF It, VIII be
70 cause them TO SIT in Judgment again upon the sub.
jec matter already determined In Its provisions, and
enlarge or restrict the terms used according TO the
view the court may take OF the everchangn0 policy
OF society," and by plant judicial legislation read
PLAIN enactment, by the light OF public law outside
OF it, In any sense which may at the time be deemed
expedient. The unreasonablenesS Of such claim Is
Its own refutation.
Nor does the consideration OF domlcie AFFECT the
proper solution OF this question. Apart from the
statutory enactmnts Of some OF the States and the
Judiciary act OF the United States, which, in certain
out OF the jurisdiction OF the defendants own domi
Gle must be brought or may be transferred there y
nothing which prohibits . citizen OF the United
States from suing his doctor resspasser upon his
rights In a personal action wherever he may find
him. Every man carries about with him hts power to
contract debts or to commit personal wrongs. ana
the law holds him accountable for the use OF these
powers wherever no may be found. This right is
guaranteed TO HIM by the second section of the fourth
article OF the constitution OF the United Statis and
the courts Of the states are bound TO preserve In.
violate. II the position contended for behalf OF
the defendant be tenable then no mall carrier, no
clerk Of department. no officer OF the army or
navy, no taxgatlerer none of the numerous host OF
public officers would be suabe when out of his own
domcile On public duty.
The records of the courts OF all the States and OF
the United States win show that in the numerous
suits to which persons in public ojlce have been
held liable no such immunity has been awaited OF,
and hence we may fairly presume from the absence
OF snch a Defence that IL is q suggestion now made
for the trst me and Is yet to be adopted as part
Another consideration earnestly urged in argu-
ment deserves to be noticed. 1t was said that no.
thing could be conceived Eat the present time
the Union, great as existing troubles are, Than to
have 1t understood, the law Of the State OF Mary
land, that no Senator or Representative Of the
United States can pass through this gateway Of the
sea- OF government, whether In going to or return
ing from the sessions OF Congress- without being sub
Ject TO have all his controversies, not only with c
zens OF the State OF Maryland, but with those OF ali
other States, swept up as by drag net, and finally
ferred to that Of the courts OF this Sta1e''
II it Is meant by this that the peace Of the Union
~
ton In Maryland different from that which would be
held In other States, then under such construction
there might be some ground for the entertainment
the same in Maryland that it is in Maine and Is to
be construed by the same rules in both States 1t Is
the duty OF the courts OF Maryland TO interpret 1t
according to Its true intent and meaning and, the
Interpretation being right, IT, from her geographical
position, her courts are used more than those OF
other more remote States, 1t IL an accident OF
locality for which she Is not respons bic. But more
practical answer IL to be found in the history of the
n
operation since the year 1851 and the peace Of the
country has remained thdsturbed by any such cause
as Is now presented to our fears. II the liability OF
public officers to be sued In their transit through
Maryland had ever presented probable cause OF
danger to the national harmony the occasion would
have early arisen to demand the adjustment 81 the
subject upon Safe basis by conservative legslatlon
and yet we see that no such legislation has taken
place. But TO infer that becauso such suits may
be brought. therefore they Will be quent and their
frequency would be oppressive to the officer, and In
furious TO the interests of the public. implies that
there iSan advantage to the plaintiff IN suing his
debtors away from his home whici would lead him
always to ayail of the opportunity to do SO; where
1t Is wen known that the venue OF the suit enters
as much inio the convenience of the plaintiff "a it
cases, the place where the cause OF action
arose - the common domclle II both, the mo-
Ss o. Of Set dO IL DSnY s N os
the plaintif than any supposed advantage rom
suit elsewhere s VII But eases may arse n which ne
fairness in requiring that the suit shall be brought
In allowing 1t TO be brought within the domice Of the
plantr or if that be not practicable, In any place
In which the defendant may be found.
II Is not placing too strong reliance on the
good sense and patriotism OF the American
people to believe that when the occasion arises
which may demand q resort 10 the courts Of
whatever state the defendant, being public
officer may be found in, the people will await
their Judgment with undsturbed ca mness demand
ing only that their Judgment shall be the result OF
an honest and impartial application OF the law and
the constitution.
For the reasons have given am OF opinion
that the privilege OF Senators AMI Representatives,
secured TO them by the constitution OF the United
their persons, the service upon them OF such pro-
cess as the disregard OF which wo1ld expose them
to an attachment for contempt other personal
moestaton; ana as the writs OF summon In these
cases involve none of these consequences I shall
iixaI