Article 1, Section 6, Clause 1

Document 13

Bolton v. Martin

1 Dall. 296 C.P. Phila. 1788

On the 6th of September, the President delivered the opinion of the court.

Shippen, President.--The question in this case, is, whether a member of convention, residing in a distant county, could legally, and consistently with the privileges of such a deliberative assembly, be arrested or served with a summons, or other process, out of this court, issued to compel his appearance to a civil action, while he remained in the city of Philadelphia attending the duties of that office?

The members of convention, elected by the people, and assembled for a great national purpose, ought to be considered, in reason, and from the nature as well as dignity of their office, as invested with the same or equal immunities with the members of General Assembly, met in their ordinary legislative capacity: and in this light, I shall consider them.

The Assembly of Pennsylvania being the legislative branch of our government, its members are legally and inherently possessed of all such privileges, as are necessary to enable them, with freedom and safety, to execute the great trust reposed in them by the body of the people who elected them. As this is a parliamentary trust, we must necessarily consider the law of Parliament, in that country from whence we have drawn our other laws. That part of the law of Parliament, which respects the privileges of its members, was principally established to protect them from being molested by their fellow-subjects, or oppressed by the power of the crown, and to prevent their being diverted from the public business. The parliament, in general, is the sole and exclusive judge and expositor of its own privileges: but, in certain cases, it will happen, that they come necessarily and incidentlally before the courts of law, and then they must likewise judge upon them.

The origin of these privileges is said by Selden to be as ancient as Edward the Confessor. For a long time, however, after the conquest, we find very little, either in the books of law, or history, upon this subject. If there were then any regular parliaments, their members held their privileges by a very precarious tenure. There appears, indeed, in the reigns of Henry IV. and Henry VI. to have been some provisions made by acts of Parliament, to protect the members from illegal and violent attacks upon their persons. In the reign of Edward IV., there has been a case cited to show, that the judges determined that a menial servant of a member of parliament, though privileged from actual arrest, might yet be impleaded. Although it were fairly to be inferred from the case, that the privilege of the servant was equal to the privilege of the member himself, yet a case determined at so early a period, when the rights and privileges of parliament were so little ascertained and defined, cannot have the same weight as more modern authorities.

Upon an attentive perusal of the statute of 12 & 13 Wm. III., c. 3; I think, no other authority will be wanting to show what the law was upon this subject, before the passing of that act. From the whole frame of that statute, it appears clearly to be the sense of the legislature, that, before that time, members of parliament were privileged from arrests, and from being served with any process out of the courts of law, not only during the sitting of parliament, but during the recess within the time of privilege; which was a reasonable time eundo ct redeundo. The design of this act was not to meddle with the privileges which the members enjoyed during the sitting of parliament (those seem to have been held sacred), but it enacts, that after the dissolution or prorogation of parliament, or after adjournment of both houses, for above the space of fourteen days, any person might commence and prosecute any action against a member of parliament, provided the person of the member be not arrested during the time of privilege. The manner of bringing the action against a member of the house of commons is directed to be by summons and distress infinite, to compel a common appearance; but even this was not to be done, until after the dissolution, prorogation or adjournment. The act further directs, that where any plaintiff shall, by reason of privilege of parliament, be stayed from prosecuting any suit commenced, such plaintiff shall not be barred by the statute of limitations, or nonsuited, dismissed, or his suit discontinued for want of prosecution, but shall, upon the rising of parliament, be at liberty to proceed. So that before the rising of parliament, and during the actual sitting of it, it appears, not only that, generally, a suit could not be commenced, but, if it had been commenced before, it could not be prosecuted during that time. One exception, as to commencing the action, appears to have been made by the judges, agreeable to the spirit and apparent intention of the act; which is, that in order to prevent a member of parliament from taking advantage of the statute of limitations, by reason of his privilege, an original might be filed against him; but that original must lie dormant, during the sitting of parliament, no process could issue upon it to compel an appearance; nor until this act passed, could it have been done at any time, after the rising of parliament, during the time of privilege.

This construction of the act is so obvious, that, upon any other, almost all the provisions in it would have been nugatory; and it fully accounts for the seeming doubt in Col. Pitt's case in Strange, whether he should be discharged on common bail, or be discharged altogether; it being after the dissolution of parliament, the plaintiff had a right, by the act, to commence a suit against him; and therefore, it seemed, at first, that he should only be discharged on common bail; but as he had commenced his suit by arresting his person, before his time of privilege expired, the judges, that they might not seem to countenance the arrest, discharged him entirely.

If it were possible to doubt of this being the true construction of the act of 12 & 13 Wm. III., it is made still clearer, by the act of 2 & 3 Ann. c. 18, which directs that any action may be commenced against a member of parliament employed in the revenue, or other place of public trust, even during the sitting of parliament, for any misdemeanor, breach of trust, or penalty, relating to such public trust, provided his person be not arrested. This act was made for this single purpose, and would have been likewise nugatory, if an action could have been brought before, against any member of parliament, during the sitting of the house.

Black. Com. 165 was cited, to show, that a member of parliament might be sued for his debts, though not arrested, during the sitting of parliament. This will appear to be expressly confined to actions at the suit of the King, under a particular provision in the statute of Wm. III., and, by the strongest implication, shows, that it could not be done at the suit of a private person. A little higher, in the same page, a general position of Judge Blackstone will be found, which fully reaches the case in question. "Neither (says he) can any member of either house be arrested, or taken into custody, nor served with any process of the courts of law, nor his servants arrested, &c., without a breach of the privilege of parliament."

In the case before us, the defendant appears to have been served with a summons out of this court, during the time of the actual sitting of the Convention. Whether we take the law to be, as it stood in England before, and at the time of passing the act of Wm. III., or as it stood after the passing that act, down to the 10th of Geo. III., about six years before our revolution, it is clear, that no member of parliament, other than those particularly excepted, could be arrested or served with any process out of the courts of law, during the sitting of parliament.

We cannot but consider our members of assembly, as they have always considered themselves, entitled by law, to the same privileges. They ought not to be diverted from the public business by law-suits, brought against them during the sitting of the house; which, though not attended with the arrest of their persons, might yet oblige them to attend to those law-suits, and to bring witnesses from a distant county, to a place whither they came, perhaps solely, on account of that public business.

The Founders' Constitution
Volume 2, Article 1, Section 6, Clause 1, Document 13
The University of Chicago Press

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