not be quafhed, upon a fuggeftion, that the Defendant, acting in this public capacity, was entitled to privilege?
The cafe was elaborately argued by Levy for the Plaintiff; and Sergeant and Bradƒord for the Defendant.
Levy reprefented the queftion to be, fimply, whether a member of the State Convention was protected, during the fefiions of that body, from being ferved with a Summons? He remarked, that there appeared to be a ftrong diftinction between the privileges of a permanent Legiflature, and thofe which might be claimed by a Convention called for a temporary purpofe : but, waving any argument arifing from that fource, he contended that there was no fimilitude between the deliberative bodies of England and Pennʃylvania; and that, confequently, the privilege of Parliament in that country, was not capable of a ftrict application in this. The Engliʃh Conftitution, confifting of three branches, was fo conftructed as to prevent the encroachments of one branch upon another, and privilege, as allowed in England, was the neceffary refult of that principle. The privilege of that Houʃe oƒ Lords, might, perhaps, be founded on immemorial ufage ; but if the members of the Houʃe oƒ Commons had not, likewife, been protected from arrefts, it is eafy to perceive, that their deliberations and decifions might, at any time, have been interrupted by the practices of the other branches of the government. But if we muft ftill be refered to the privilege of Parliament, he infifted that the protection of a member of the Houʃe oƒ Parliament, extended only to the cafe of arrefts, or perfonal reftraint, and not to the fervice of a Summons. Atk. tracts 41. 42. 43. 1 Mod. 146. S.C. Nay, we find that anciently the Courts of Juftice only took cognizance of the Privilege of Parliament, to deliver the party out of cuftody, and not to abate the fuit brought againft him 1 Black. Com. 166. Dyer 59. 56. With refpect 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 queftion might be made, whether the advantage which the public derives from the protection of its fervants againft vexatious and malicious arrefts, compenfates for the injury done by fcreening a man from the payment of his juft debts. The policy of Queen Elizabeth's obfervation, that ‘‘ he was no fit subject to the employed in her ‘‘fervice, that was fubject to other men's actions, left the might be ‘‘ thought to delay juftice.’’ [♦] deferves to be well confidered in a Republic; and it appears, indeed, to have operated confiderably, even in that kingdom, from which all our precedents on the fubject are derived. Statute after ftatute has been made framed to narrow this infraction of the common law ; and, by the influence of Lord Manʃield's eloquence, the ftatute of the 10 Geo. 3. c. 50. feems at length to have placed it upon a fafe and reafonable foundation ; for, a Peer of the moft diftinguifhed rank may, at this day, be ferved with a Summons, during the fitting of Parliament. 1 Black. Com. 166.– But even when the pretenfions of the Commons were exalted to their greateft height, it was always admitted that their privilege was given for the
[♦]See Go. Lin. 131.
