Court, becaufe it was the public, and not his private, bufinefs, that bought him within its jurifdiction.
By an act paffed in the year 1684 (though fince repealed) a fummons might have been ferved in any county, at any time, with an acception ,allowing , in the cafe of a member of Affembly, a protection for the fpace of 14 days after the feffions. Shall it then be faid that any individual might compel a Judge of the Supreme Court to attend a private fuit upon the Ohio, by ferving him with a fummons, while he is difcharging his official duties on the Weʃtern circuit? We contend that the intereft of the Commonwealth requires that perfons employed if fuch fervices, fhould not be incommoded ; there is no neceffity, therefore, to derive the privilege by the analogy of other cafes; it arifes from the nature of the thing ; and many authorities fhew, that the rule is as forcible to prevent their being impleaded, as to prevent their being arrefted. 2Stra. 1994. Vin. tit. Priv. 519. A man, by the law of Pennʃylvania, may be his own council ; if he exercifes this right, is he not as much drawn from the public fervice by a Summons as by a Capias? In Mallack‘s cafe, the Court would not iffue a Subpœna to two members of the Affembly (Delaney and Hill) who were witneffes in the caufe ; but a letter was written to the Speaker, ftating the neceffity of their attendance, and a vote of the Houfe was taken to allow it. In Col. Pitt's cafe, he was entirely difcharged from a Capias, without common bail being ordered; from which it may be fairly inferred, that he ought not to have been fued at all ; as the effect of common bail, and a Summons are in that refpect, the fame.
The cafe cited from Prʃn in Alk. Tr. is not in the Year Books, and it could not have been within the knowledge of the writer, as it is faid to have happened in the regin of Edw. 3. For this reafon it bears a doubtful complexion; nor, do we know that the decifion was on the cafe before the Court ; and, at all events, there is an effential difference in privilege, when it is extended to the fervants (who have no public cares to claim their attention) and when it relates to the mafter.
Levy, in reply. He faid, that he had not affected that a member, either of the Affembly, or Convention, was liable to arreʃt during the fitting of thofe bodies ; but that he had exprefsly narrowed the queftion to this point, whether he might be ferved with a Summons? Nor had he infifted on the idea, that the Convention was not entitled to the fame privileges, which a permanent Legiflature might claim ; but merely fuggefted a diftinction for the confideration of the Court. He contended, however, that a member of the Britiʃh Houfe of Lords, fince the 10 Geo. 3. c. 50. was not entitled to the privilege claimed by the Defendant ; and, he afked, whether fuch privileges ought to be introduced and eftablifhed in Pennʃylvania, as only exifted in the dark ages of the Engliʃh government, and which the reafon and juftice of more enlightened generations had happily corrected? Finding, indeed, that they had failed in point of fact, with refpect to the exiftence of fuch a Parliamentary privilege as
