1 U.S. 296 (1788)

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U.S. Supreme Court

BOLTON v. MARTIN, 1 U.S. 296 (1788)

1 U.S. 296 (Dall.)


Court of Common Pleas, Philadelphia County

June Term, 1788

The Defendant was one of the members from Bedford county, in the State convention, which assembled at Philadelphia, to take into consideration the adoption, or rejection, of the constitution proposed for the Government of the United States, by the Federal Convention on the 17th of September 1787. During his attendance upon this duty, he was served with a Summons at the suit of the Plaintiff; and Sergeant obtained a rule to shew cause, why the Process should

Page 1 U.S. 296, 297

not be quashed upon a suggestion, that the Defendant; acting in this public capacity, was entitled to privilege? The case was elaborately argued by Levy for the Plaintiff; and Sergeant and Bradford for the Defendant. Levy represented the question to be, simply, whether a member of the State Convention was protected, during the sessions of that body, from being served with a Summons? He remarked, that there appeared to be a strong distinction between the privileges of a permanent Legislature, and those which might be claimed by a Convention called for a temporary purpose: but, waving any argument arising from that source, he contended that there was no similitude between the deliberative bodies of England and Pennsylvania; and that, consequently, the privilege of Parliament in that country, was not capable of a strict application in this. The English Constitution, consisting of three branches, was so constructed as to prevent the encroachments of one branch upon another, and privilege, as allowed in England, was the necessary result of that principle. The privilege of the House of Lords, might, perhaps, be founded on immemorial usage; but if the members of the House of Commons had not, likewise, been protected from arrests, it is easy to perceive, that their deliberations and decisions might, at any time, have been interrupted by the practices of the other branches of the government. But if we must still be refered to the privilege of Parliament, he insisted that the protection of a member of the House of Parliament, extended only to the case of arrests, or personal restraint, and not to the service of a Summons. Atk. tracts 41. 42. 43. 1 Mod. 146. S.C. Nay, we find that anciently the Courts of Justice only took cognizance of the privilege of Parliament, to deliver the party out of custody, and not to abate the suit brought against him 1 Black. Com. 166. Dyer 59.56. With respect to the nature of privilege, he argued, that, in modern times, it was become an odious and unpalatable doctrine; and that if it were res nova, a very doubtful question might be made, whether the advantage which the public derives from the protection of its servants against vexatious and malicious arrests, compensates for the injury done by screening a man from the payment of his just debts. The policy of Queen Elizabeth's observation, that 'he was no fit subject to be employed in her service, that was subject to other men's actions, left she might be thought to delay justice,'* deserves to be well considered in a Republic; and it appears, indeed, to have operated considerably, even in that kingdom, from which all our precedents on the subject are derived. Statute after statute has been framed to narrow this infraction of the common law; and, by the influence of Lord Mansfield's eloquence, the statute of the 10 Geo.3.c.50. seems at length to have placed it upon a safe and reasonable foundation; for, a Peer of the most distinguished rank may, at this day, be served with a Summons, during the sitting of Parliament. 1 Black. Com. 166. But even when the pretensions of the Commons were exalted to their greatest height, it was always admitted that their privilege was given for the [1 U.S. 296, 298]

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