1 Bur. 8 | Wis. | 1841
The defendant was a member of the legislative council of the Territory, from Grant county, and was in Madison attending the same as such member. The council adjourned on the 19th day of February, 1841, and on the next day a summons was served on said defendant at Madison, in said county of Dane, before he left for his home. Said writ was returnable to the next term of the district court for said county, to be holden on the second Monday of May in said year. At the return of the writ, the defendant filed a plea, claiming to be discharged from said suit, on the ground of his privilege as such member, to which the plaintiff filed a demurrer, which was agreed by the parties to be considered a special demurrer, .which the court entertained, and believing the plea filed to be informal, the court made this entry: ‘£ that the demurrer be sustained and the defendant have leave to plead over.” The defendant then filed another plea, averring his said privilege, which the plaintiff moved the court to strike off as a nullity; and the court overruling said motion, the plaintiff filed a general demurrer to said plea, and issue being joined on the same, the court sustained the said plea, and dismissed the defendant from the suit. The questions raised upon the record for disposition by this court are:
1. Did the court err in permitting the second plea to be filed, or in not sustaining the motion to strike it off as a nullity ?
2. Did the court err in sustaining the defendant’s plea of privilege ?
If the defendant had pursued the usual practice of the present day, in filing a motion to be discharged from the
The second point is the important question in the cause.
Privilege is an exemption from some burden or attendance, with which certain persons are indulged, from a supposition of law, that the stations they fill, or the offices they are engaged in, are such as require all their time and care, and that, therefore, without this indulgence, it would, be impracticable to execute such offices to that advantage which the public good requires. 5 Bacon’s Abr., title “ Privilege.” Privileges are said to be very ancient, and are, doubtless, of common-law origin. The privilege from arrest of an attorney, a witness, or a suitor in court, is a privilege of the court for the due administration of justice,' and is to be determined by the court. The privilege from arrest of members of legislative bodies during the session, and for a reasonable time to go to and return from the same, is a privilege of the people, as well as of the representative, and of the body of which he is a member, and is properly to be judged and determined by the house to which the member belongs, unless in cases of suits in courts against members, when it becomes a proper and necessary subject for the consideration of the courts.
In 5 Bacon’s Abr. 618, title Privilege, it is stated that this privilege extends to arrests on judicial as well as on mesne process, and to the service of a summons as well
Members of the British parliament were exempted from arrest and the service of any process out of the courts of law during the session, and for such a time thereafter, that it amounted to a total exemption from suit. The statutes of 12 and 13 Wm. III and 6 Geo. III allowed them to be sued by summons, or distress infinite, to compel a common appearance; but, even then, they were entitled to a reasonable time, redeundo. The case of Holiday v. Pitt, 2 Strange, 990, determined the privilege of members of parliament, after the passage of the first-mentioned act. He was arrested before his time of privilege had expired, after an adjournment. The judges discharged him entirely, although, at first, they thought he should only be discharged on common bail. Prom tbis it appears that members of the British parliament were, by common law, privileged from suit during the session, and for a time afterward.
The constitution of the United States exempts members of congress from arrest upon civil process during the session of congress, and for a reasonable time in going to and returning from the same. This constitution was adopted in September, 1787, with a full knowledge of the legal understanding of the privilege from arrest. There has not yet occurred one instance where congress
Judge Stoby refers to Jefferson’ s Manual, and to the
The members of the legislative assembly of this Territory being elected by the people, and empowered by the organic law, to legislate on all rightful subjects of legislation, while assembled for the purpose of legislation, and for a reasonable time to go to, and return home from, the seat of government, ought to be considered in reason, and, from the nature and dignity of their office, as invested with equal immunities with the members of any other representative body. As Judge Story says, this privilege belonged to every legislative body that existed in America since its settlement; it belonged to the assemblies of the colonies before the revolution; then why not belong to'
There is a statute in the State of New York, that every member of the legislature shall be privileged from arrest on civil process during his attendance at the session of the house to which he shall belong, except on process issued on any suit brought against him for any forfeiture, misdemeanor, breach of trust, etc., and for fourteen days previous to any such session, and, also, while going to and returning from such session, provided the time of such going to or returning does not exceed the fourteen days. There are no reported cases in New York giving a construction to this statute, or defining this privilege by the courts ; but the legislature, in the enactment of the statute of limitations, gives us to understand that they construed 'the privilege from arrest to extend to a privilege from suit. In that statute it is provided, that whenever the commencement of any suit shall be prevented, by reason of any privilege of any member of either house of the legislature of this State, or of any member of either house of the congress of the United States, the time during which the same have been prevented shall not be deemed any portion of the time limited for the commencement of any suit, etc.
All the statute law we have on the subject of this privilege is an act of the Territorial legislature, on page