King v. Coit

4 Day 129

Opinion

J. C. Smith, J.

Footnotes

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(b)

It is admitted, that the defendant ■was a member of the general court, and that the writ of error was served upon him during his actual attendance. The language of the statute is too explicit and positive to allow the least latitude of construction. “ That no member [of the general court] during the sessions thereof, or in going to or from the said court, be arrested, sued, or imprisoned, or any ways molested, or troubled, or compelled to answer to any suit, bill, plaint, declaration, or otherwise, before any other court, judge, or justice, cases of high treason and felony excepted.” The member is protected not merely from process that may in any degree restrain or confine him, but from all process whatever of a civil nature. The same privilege was anciently claimed by the English house of commons, and received, at an early period, the sanction of their courts of justice. It is defined in elementary writers in terms which must have been copied by the framers of our statute. So sacred was it deemed in the time of Sir Edward Coke, that in 4 Inst. 24. he says, “Nor shall he [a member] be served with a subpcena, citation, or other process, though he be not restrained.”

There can be no doubt that the defendant’s privilege has been invaded; and I apprehend there is as little doubt that he has chosen a proper method of taking advantage of it. Indeed, some of the provisions of the act could not be enforced in any other way.

A reference to the common-place writers, and the various books of practice, will show, that privilege generally is pleadable in abatement. 1 Com. Dig. 3. 5. 4 Com. Dig, 334. 336. Tidd’s Prac. 172.579. 1 Chit. Plead. 431. 1 Stra. 532. And if in England recourse is usually had to a supersedeas, the writ of privilege, or other specific remedies, rather than to dilatory pleading, it is because the subject of parliamentary privilege has undergone such material changes as to render the latter almost, if not altogether, unnecessary. For it is worthy of remark, that whilst by several successive statutes from 12 Wm. III. to 10 Geo. III. the boasted privilege of parliament is reduced to little more than exemption front personal restraint, our statute remains unaltered, and secures to the members of the general court an inviolability, which has not been enjoyed to the same extent by the English house of commons, for more than a century.

Whether the legislature intended to provide for cases of this particular description; and, if so, whether it was to be expected any member would avail himself of his privilege against a process like the present, so little calculated to “ molest or trouble himf are considerations which may be addressed to the legislature itself, but which can have no influence upon this court.,

I am of opinion that the replication is insufficient, and, that the writ ábate.

In this opinion Mitchell, Ch. J. Swift, Trumbull Edmond, N. Smith, BrainerD, and Baldwin, Js. severally concurred.

Reeve, J.

The statute, by reason of which it is contended, that this writ ought to abate, is in the words following: “ That no member of the said court, during the sessions thereof, or in going to or from the said court, be arrested, sued, or imprisoned, or any ways molested or troubled, or Compelled to' answer to any suit, bill, plaint, declaration, or otherwise, before any other court, judge or justice ; cases of high treason and felony excepted.” Tit. 42. c. 1. s. 12. I apprehend, that if this privilege should be violated by a suit, it is not a necessary consequence that the writ should abate. It is doubtless a breach of privilege of the house, and will subject the violator to all that punishment which the house can inflict upon a violator of their privileges. So too, as the great object of the law is, to secure the undisturbed attendance of its members, if a member of the general assembly should be arrested, he must be discharged from that arrest. But this by no means puts a period to the suit commenced. There was no injury done to the public; and surely the law was not made for the defendant. So too, if the suit had been commenced without arrest, by summons; if he was to answer during the sessions of the general assembly, it would be a breach of privilege of the house, and the suit must be stayed until such time as he could attend. So too, if he had been sued before the time cundo, and the time of trial should happen during the session; though¿ this is no breach of privilege, yet the proceedings ought to be stayed. The grand object to be attained is the undisturbed attendance of the members upon the great concerns of the state. The word “ sued” is to be understood in this sense only, that a .member cannot be compelled to attend on airy suit during the sessions of the general assembly. It is immaterial whether the suit be commenced before the time ettndo, or afterwards. The whole pAvilege is that of the public, or of the general assembly as their representatives, and has nothing in it personal. That privilege which the member has to be free from arrest redeundo, is also the privilege of the public; for unless this was the case, the man who knew that he was liable to arrest would be restrained from going. It was therefore necessary, to secure his attendance, that he should have the liberty redeundo. Every thing which is desirable to be attained, is effected by* this construction; and no unnecessary impediment is thrown in the way of attaining justice by suit. There can be no conceivable use in granting a personal privilege to a member of the legislature that he shall not be sued, unless that suit will, in some measure, operate so as to prevent his attendance upon the business of his appointment. Therefore it is, that if arrested, he must be discharged ; or if sued before a court which sits during the general assembly, proceedings must be stayed. That this is the doctrine of the books on this subject, I think is undeniable; and I consider our statute as introducing no new law, but that it is in affirmance of the common law. It seems to be almost a literal copy of the language of the common law as laid down by the elementary writers. The same terms are used ; and I think we are bound to give the same construction to those terms as'were given to them by the courts of justice of that country at the time that our statute was enacted, unless there are some indications in the statute that they are to have a different effect. It would have been an easy thing for the legislature to have declared, if they so intended, that such proceedings were null and void, or that they should abate; whereas the uniform language of the courts has been, that the process was not void, but that in serving the process a wrong had been committed. The lan guage of the law, as laid down in the books, is, that a member of parliament shall have privilege for himself, his servants and goods; and therefore he shall not be arrested or sued, nor shall he be served with a subptena, citation, or other process, though he be not restrained ; nor shall he be in any way molested ; and it is therefore a breach of privilege either to arrest or assault a member of parliament eundo, morando, vel redeundo, 4 Inst. 24. Dew’s Journ. 43. 66.

This language is in all respects as strong as the language of our statute; and yet I apprehend it was never considered as a reason for abating the suit. No plea of abatement on this account will be found in the books, although it was a thing which constantly happened ; and in ófher cases of privilege, as where attorneys, clerks, and the like, were privileged from being sued unless in certain courts, if such privilege were infringed, it was cause of abatement, or rather it afforded a plea to the jurisdiction of the court before which they were sued. The books are full of instances of the party thus sued availing himself of such a plea.

When a member of parliament was arrested, the ancient practice was to obtain a writ of privilege to be discharged, not from the suit, but from the arrest; and a supersedeas issued to the court to stay proceedings as long as the privilege of parliament lasted. The commons claimed that to be forty days before and after every session. Executors of Skewy’s v. Chamond, 1 Dy. 69. Earl of Athol v. Earl of Derby, 2 Lev. 71. A more summary mode was afterwards introduced of obtaining a discharge by motion; but it was not from the suit, but from the arrest; and so it was expressly laid down in the case of John Pitt, Esq. Com. Rep. 444. S. C. Fortes. 342. S. C. Cas. temp. Hardw. 28. and that it must be on filingcommon bail. But this, as appears from the report of the case just cited in 2 Stra. 985. was ordered to be struck out, as it would seem to warrant the arrest in some measure. The decision in Strange did not turn upon any new law which was enacted subjecting members of parliament where they were not before subjected, but only upon the ground that by the slat. Wm. III. there might be a discharge upon motion, without obtaining by writ of privilege a supersedeas. In the report of the case in Cas. temp. Hardin, we are told expressly, that by the stat. Wm. III. the arrest of a member of parliament during privilege was made illegal and irregular, which was not so before that time; and therefore the court discharged him on motion, and compared it to an arrest on Sunday. There never was, antecedent to that period, any plea in abatement; but the regular method was, to sue out a writ of privilege, and this was pleaded as a supersedeas 'to the action, and was substantially a plea to the jurisdiction of the court. But this must be a mere temporary stay of proceedings as long as privilege of parliament lasted ; for nothing can be clearer than that the court did not consider the arrest of a member of parliament as illegal before the stat. Wm. III. Of course, the court before that time had jurisdiction ; and, although there might be substantial reasons why the process should be stayed, as long as the public stood in need of his services, and why his person should 'be protected from arrest eundo et redeundo ; yet, wherever we find it laid down that a writ of privilege is a super-sedeas to the action, it must always be understood with this limitation, as long as that privilege lasts. The form of the supersedeas we find in 4 Inst. 24. which shows .its nature and extent. The justices are directed, that they supersede their proceedings, where members of parliament are parties, as long as the parliament lasts; tVhich must mean during the session of parliament, and the time subsequent, which is included in the time of privilege.

We find the judges, in the case before alluded to, comparing the law of privilege of parliament to the privilege of parties and witnesses in a suit; and, indeed, placing it upon the same footing. It will therefore throw light upon the question, if we attend to the law in that respect. The language of the law in those cases is, if a man is summoned to attend,the courts of justice in Westminster, and is arrested during his attendance upon the court, he shall be discharged, and shall be protected eundo ee redeundo ; but this does not mean a discharge from the suit, but from the arrest. See Lightfoot v. Cameron, 2 Bla. Rep. 1113. A party who had been attending on his cause was arrested in the evening at a tavern ; the court discharged him; and afterwards the person so arrested brought an action of false imprisonment against the plaintiff in the former case. Cameron v. Lightfoot, 2 Bla. Rep. 1190. Here the court proceeded upon the ground, that the suit was not discharged in the former case ; and, as proof of this, it was urged, that when the court discharged the plaintiff, the suit was not thereby discharged, for be, was holden to give common bail. De Grey, Ch. J., in pronouncing the opinion of the court, observes, that when a party was entitled to privilege, a supersedeas was granted; that the irregularity did not lie in the process, but in the service of it, and he cites Co. Entr. 436. where the party was detained upon sis actions, and he was discharged, but was obliged to give bail. The chief justice pbserves, that the process is not void, for it remains the foundation of subsequent proceedings. He then proceeds to observe, that instead of the party’s procuring a writ of privilege, as formerly, the court now discharges on motion; and adds, the process continues legal, and capable of being executed at a subsequent time, when privilege does not intervene. And in case of a criminal proceeding, where the process could not go on without the personal attendance of the person arrested, although it might be that as an attendant on court he ought to have privilege, yet in that case he would not be discharged from the arrest, although the person arresting would be punished for a contempt. In the before mentioned case, it ⅛ - clear, thaf. court consider a discharge as not discharging the., suit, but; - only the arrest. The language in ihe caae , of privilege of parliament, and in the case of privilege of suitors, is the same language. The person arrested is. entitled to, a discharge on giving common bail. The law in both cases is the same. And as a matter of course, in the case of Col. Pitt, as reported in 2 Stra, 985. the court directed him to be discharged upon filing common bail. But upon a further investigation of the subject» the court were of opinion, that before the stat. Wm. Ill, the process was legal, and common bail UUght ■ to be entered; yet as they now discovered that this statute had rendered the arrest illegal, (with which statute we have nothing to do,) the court directed that the order to enter common bail should be struck out of the qrder of discharge.

Our statute is in the language of the common law, and ought to be construed in the same manner; and, by, the common law, such suit would not abate.

Judgment that the plaintiff’s replication is Insufficient, and that the writ abate.

At the session of the legislature in October, 1809, an act was passed, making it the duty of the judges ol the supreme court of errors to give their opinions in ail matters of law by them decided, publicly and separately.