Nones v. Edsall

18 F. Cas. 296, 1 Wall. Jr. 189

• Court: U.S. Circuit Court for the District of New Jersey
• Decided: April 15, 1848
• Status: Published

Opinion

GRIER, Circuit Justice.

We cannot allow you to continue this case as a matter of right, on your claim of privilege. The opinion expressed by the supreme court of Pennsylvania in the case cited, has been considered rather as a dictum than a decision; and we do not think it founded on correct principle, or supported by precedent Members of congress are privileged from arrest both on judicial and mesne process, and from the service of a summons or other civil process while in attendance on their public duties. Indeed, it was at one time doubted whether this privilege from arrest extended to judicial or final process. Starrett’s Case, 1 Dall. [1 U. S.] 356.

But though that is now conceded, because an arrest would interfere with his public duties. yet none of the reasons on which this privilege is allowed, can extend it to the right to continue a cause pending in court. We cannot allow it propter dignitatem, alone, unless as a matter of comity, which would require the consent of the opposite party. Assuming the fiction of law to be a practical truth, that a member of congress cannot absent himself from his duties unless to the detriment of the public, yet it does not necessarily follow, that if this trial proceed the defendant need be compelled to neglect his public duties. In contemplation of law he is already in court by his counsel; and his personal attendance is not required at the trial either in theory or in practice. We all know that causes are tried in this and every other ■civil court, almost daily without the presence of the parties. Any other person may be employed to subpoena witnesses, and if the attorney be properly instructed in this case, the presence of his client on the trial is of little importance. Hence, it is well settled that the sickness of a party is, of itself, no sufficient reason for postponing the trial of a cause. If a physical inability to attend court be not a sufficient reason for postponing a cause, it is not easy to perceive why a factitious or fictitious inability should be vested with any higher privilege.

We are not willing, therefore, to concede to the defendant a continuance of this case, when claimed as a matter of privilege and right; but we are disposed to grant it, in the exercise of our discretion, and for the reasons urged, on condition of payment of the costs of the term. Continuance granted.