Page:United States Reports, Volume 1.djvu/314

Rh 

1788.

The members of Convention, elected by the people, and affembled for a great national purpofe, ought to be confidered in reafon, and from the nature, as well as dignity, of their office, as invefted with the fame or equal immunities with the members of General Aʃʃembly, met in their ordinary legiflative capacity: and in this light I fhall confider them.

The Affembly of Pennʃylvania, being the legiflative branch of our Government, its members are legally and inherently poffeffed of all fuch privileges, as are neceffary to enable them, with freedom and fafety, to execute them. As this is a parliamentary truft, we muft neceffarily confider the Law oƒ Parliament in that country from whence we have drawn our other laws. That part of the law of Parliament, which refpects the privileges of its members, was principally eftablifhed to protect them from being molefted by their fellow fubjects, or oppreffed by the power of the Crown, and to prevent their being diverted from the public bufinefs. The parliament, in general, is the fole and exclufive judge and expofitor of its own privileges: but in certain cafes, it will happen, that they come neceffarily and incidentally before the Courts of law, and then they muft likewife judge upon them.

The origin of thefe privileges is faid by Selden to be as ancient as Edward the Confeffor.– For a long time,however, after the conqueft, we find very little, either in the books of Law, or Hiftory, upon this fubject. If there were then any regular Parliaments, their members held their privileges by a very precarious tenure. There appears, indeed, in the regins of Henry the 4th and Henry the 6th to have been fome provifions made by acts of Parliament, to protect the members from illegal and violent attacks upon their perfons. In the reign of Edward the 4th, there has been a cafe cited to fhew, that the Judges determined that a menial fervant of a member of Parliament, though privileged from actual arreft, might yet be impleaded. Although it were fairly to be inferred from the cafe, that the privilege of the fervant was equal to the privilege of the member himfelf, yet a cafe determined at fo early a period, when the rights and privilege of Parliament were fo little afcertained and defined, cannot have the fame weight as more modern authorities.

Upon an attentive perufal of the ftatute of 12&13. Will. 3.c. 3. I think, no other authority will be wanting to fhew what the law was upon this fubject, before the paffing of that act. From the whole frame of that ftatute, it appears clearly to be the fenfe of the Legiflature, that, before that time, members of Parliament were privileged from arrefts, and from being ferved with any procefs out of the Courts of law, not only during the fitting of Parliament, but during the fitting of Parliament, but during the recefs within the time of privilege ; which was a reafonabletiem eundo & redeundo. The defign of this act was not to meddle with the privileges which the members enjoyed during the ʃitting oƒ Parliament (thofe feem to have been facred) but it enacts, that aƒter the diʃʃolution, or prorogatium, of Parliament, or after