Long v. Ansell, 6008.

• Citation: 69 F.2d 386
• Decision Date: 05 February 1934
• Docket Number: No. 6008.,6008.
• Parties: LONG v. ANSELL.
• Court: U.S. Court of Appeals — District of Columbia Circuit

69 F.2d 386 (1934)

LONG v. ANSELL.

No. 6008.

Court of Appeals of the District of Columbia.

Argued October 3, 1933.

Decided February 5, 1934.

Modification Denied February 19, 1934.

Joseph E. Davies, Adrien F. Busick, and S. W. Richardson, all of Washington, D. C., for appellant.

Burr Tracy Ansell, of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.

VAN ORSDEL, Associate Justice.

This case comes here by special appeal from an order of the court below denying defendant's motion to quash the summons and service issued upon a petition filed by respondent, plaintiff below, charging the defendant with publishing a false and malicious libel.

The publication, it is alleged, purported to be a report of a speech made by the defendant on the floor of the Senate of the United States. It is alleged that the speech itself contained libelous and defamatory statements; and that the defendant caused copies of the Congressional Record containing the speech to be printed and mailed to persons in Louisiana, the District of Columbia, and elsewhere. Accompanying the speech was a letter inviting the recipient to read the printed document.

It is unnecessary for us to consider the contents of the published circular that it is alleged was circulated by the defendant. It is sufficient to say that if the allegations of the petition are supported by sufficient evidence, the matter charged constitutes libel per se. The issue here presented is whether or not a Senator of the United States, while serving in his official capacity, is exempt from service of civil process in the District of Columbia.

Section 6, article 1 of the Constitution, provides as follows: "The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place." Similar language is found in the Constitutions of the several states, and some confusion has arisen among the courts in construing and interpreting these provisions. In some instances it is held that the word "arrest" refers to arrest in certain classes of criminal cases. In other instances it is held that the word "arrest" should be confined to physical arrest in civil cases; and in still other cases it has been held that the word "arrest" has general significance and applies even to the service of civil process.

In the case of Merrick & Durant v. Giddings, 1 MacArthur & M. (11 D. C.) 55, decided in 1879 by the Supreme Court of the District of Columbia, Mr. Justice Wylie, in an able opinion, reviewed at great length the decisions of the early English courts on the subject of the exemption of members of Parliament from arrest, either in criminal proceedings or by service of civil process. Originally the exemption was extended in some cases even to the prevention of the service of summons upon servants and employees of a member of Parliament, on the theory that it might interfere with the service to be rendered by the employee to the member. The extent, however, to which these cases generally held is stated by Lord Chief Justice Denman in Stockdale v. Hansard, 7 C. & P. 737, in which the chief justice said: "The proceedings of Parliament would be liable to continual interruption, at the pleasure of individuals, if everyone who claimed to be a creditor could restrain the liberty of the members. In early times their very horses and servants might require protection from seizure, under legal process, as necessary to secure their own attendance; but when the privilege was strained to the intolerable length of preventing the service of legal process, or the process of a cause once commenced against any member, or of threatening any who should commit the smallest trespass upon a member's land, though in the assertion of a clear right, as breaches of the privilege of Parliament — these monstrous abuses might have called for the interference of the law, and compelled the courts of justice to take a part."

These early decisions of the English courts, however, were greatly modified or set aside by an act of Parliament, 10th George III, chapter 50, which declared:

"Sec. 1. Any person may at any time, commence and prosecute any action or suit in any court of record, or court of equity, or by admiralty, and in all causes matrimonial and testamentary, against any peer or lord of Parliament of Great Britain, or against any of the knights, citizens, or burgesses, etc., for the time being, or against any of their menial or any other servants, or any other persons entitled to the privilege of Parliament; no such action, suit, or other process or proceeding thereupon, shall at any time be impeached, stayed, or delayed by or under any color, or pretense of any privilege of Parliament.

"Sec. 2. But nothing in this act shall extend to subject the person of any of the knights, citizens, and burgesses, members of the House of Commons for the time being, to be arrested or imprisoned upon any such suit or proceeding."

This act was passed seventeen years before the drafting of our Constitution, and as said in the Merrick Case: "Our Constitution was signed in 1787, and was framed by men who could not have been ignorant of that act of Parliament. It is impossible to believe that they intended that the members of the Congress of the United States should have a greater extent of privilege in this matter, than belonged at that time to the Peers of Great Britain. It is well known that the current of public sentiment in this country, was altogether in the opposite direction at that period of our history. From that day to the present, neither the Senate nor the House of...