1788.
they claim, he faid, the adverfe council had entered elaborately into arguments ab inconvenienti. But in doing this, no anfwer had been given to the reafon for paffing the 8 H. 6.c. 1. by which ftatute, the members of the Convocation, were firft exempted from perfonal arreft.
Where, however, is the great inconveniency of a fuit, if it is not founded in malice, or inftituted in a fubordinate and incompetent jurifdiction ? neither of which can be pretended upon this occafion. Is there any thing more required, in its firft ftages, than to direct an Attorney to enter an appearance? When, indeed, the caufe is ready for trial, at the diftance of, perhaps, many months, and long after the bufinefs of a deliberative Affembly, conftituted for fimilar purpofes as our State Convention, muft be clofed, it will ne neceffary to prepare for a defence, if there is any in the caufe ; but in this fo fevere a hardfhip as to diftract a member of the Affembly, or Convention, in the profection of his duty, and to difqualify him for the public fervice in which he is employed?
Nothing appears to fhew that any other county, is a more proper county than this ; fo that the offer to appear gratis might have been fpared ; as well as the argument refpecting the venue, which is an inconveniency that extends to all cafes ; is equally felt by every citizen ; and, proving too much, it muft be taken to prove nothing.
The act of 1684, has been long repealed ; and the diftinction attempted between a Capias and Summons does not apply ; for every writ irregularly iffued muft be fet afide ; and, therefore, if a man is illegally arrefted, a common bail ought not to be ordered.
With refpect to the inftance of an application of the Speaker of the Affembly, requefting the attendance of two members, that was in the cafe of witneffes ; and as the Court, after iffuing a Subpœna, muft have compelled obedience to it by attachment, a very ferious queftion, btween the legiflative and judicial authority, was prudently avoided by the ftep then taken.
If the privilege in England is not the refult of their form of government, why does it exift forty days before, and forty days after, the feffions, in the cafe of the members for Middleʃex and London, who certainly do not require fo long a protection cuando et redeundo. But the whole argument ought to be determined by an analogous confideration of the 5 Sect. oƒ the Art oƒ Conƒed.
On the 6th of September, the PRESIDENT delivered the opinion of the Court.
SHIPPEN,Preʃident.–The queftion in this cafe, is, whether a member of Convention, refiding in a diftant county, could legally, and confiftently with the privileges of fuch a deliberative Affembly, be arrefted, or ferved with a Summons, or other procefs, out of this Court, iffued to compel his appearance to a civil action, while he remained in the city of Philadelphia, attending the duties of that office?
