The Washington times., 1904-01-26
Authority TO Arrest
Members of Congress
Constitution Provides That They Shall Be
Privileged Except in Case of Treason, Eel
Ony, and Breach of the Peace.

house fully as much as an actual
breach OF the peace. This case was the
sensational arrest of Representatives H.
A. Wise and Edward Stanly. on May
r. 1872, as they were about to leave the
District of Columbia to fight a duel.
The warrant was issued by Judge
rhurston and charged: There is prob
able cause to believe that the Hon. II.
A Wise, M. c., and the Hon. Edward
Stanly. NJ. c.. are about to commit
breach Of the peace by fighting a duel.
and that preparations are now making
by said parties TO commit said breach of
peace"
Wise was arrested, the return being
before Judge Mosell. of the Circuit
Court. p. r. Fendau then being the
United States District Attorney. The
defense made was that the defendant
was privileged from arrest. except for
an actual breach of the peace. which
was not charged in the warrant Mr..
Fendall argued that the privileges
claimed by members of Congress ought
to be rigidly scrutinized and kept in
narrow limits. If indeed. In form of
government like ours. they could be toll
Grated at all. He disliked the name of
privileges" IL has. indeed. 70 use the
language of Patrick Henry, "a squirting
towards monarchy" English history
shows to what arbitrary lengths this
abuse went until an independent judi
ciary checked il.
Cited English Issue.
At this point Mr.. Fendall cited the
celebrated English case Of Stockdale VS..
Luke Hansard. printer to the house Of
Commons, in which Chief Justice Den
man ruled that ancient customs were
unsuited to a modern age. In the follow
ing language;
In early times the very horses and
servants OF members might require pro-
lection from seizure under legal process,
as necessary 70 secure their own at
tendance; but when this privilege was
strained to the intolerable length of pre-
venting the service Of legal process. or
the progress Of a cause once commenced
against any member during a sitting of
parliament. or Of threatening any who
should commit the smallest trespass
upon a members land, though in asser-
ton OF a clear right. as breakers OF a
privilege of parliament. these monstrous
abuses might have called for the inter-
ference of the law and compelled the
courts Of justice TO take part"
Required to Give Bond.
After hearing two arguments of the
case Judge Mosell decided for the
prosecution, and required Representa-
tive Wise to give security to all citi-
zens of the United States, in the Dis
trict of Columbia, not to commit a
breach Of the peace. and not for one
year to leave the District to fight a duel
with Stanly. and Wise was required
to give a 5000 bond TO these effects.
One of the most recent decisions on
this point was that in the case of How
ard VS.. the Citizens National Bank
and Trust Company. This was an APP
peal case submitted to Justice Shepard
q January IA. 1898. The Tennessee
Bank had obtained a judgment for some
500 against Representative Milford W.
Howard. of Alabama. who represented
one of the districts OF that State for a
great many years. Howard Is best
known as the author Of IF Christ
Came to Congress" Having obtained
the judgment the bank attached funds
OF Howard in the Lincoln National
Bank. The defendant pleaded his priv
ilege as a member of Congress in abate-
ment of action. and also that he was
a resident OF the District of Columbia
Justice Shepard ruled that neither of
these defenses held good. and that any
member OF Congress could be sued in
the District.