SECTION 2. Of the different modes of obtaining a discharge of the SECTION 3. Of the appointment of trustees, with their powers and PART III. OF INCIDENTAL MATTERS AND PROCEEDINGS CONNECTED WITH CHAPTER I. OF PRIVILEGE FROM ARREST. clared void. Privilege of ambassadors.] By the law of nations, ambassadors and other public ministers, and their domestic servants, are privileged from arrest.1 And it is provided by act of con- Process degress "that if any writ or process, shall at any time hereafter be sued forth, or prosecuted by any person or persons, in any of the courts of the United States, or in any of the courts of a particular state, or by any judge or justice therein, respectively, whereby the person of any ambassador, or other public minister of any foreign prince or state, authorized and received as such by the president of the United States, or any domestic or domestic servant of any such ambassador or other public minister, may be arrested or imprisoned, or his or their goods or chattels be distrained, seized, or attached, such writ or process shall be deemed and adjudged to be utterly null and void, to all intents, construction, and purposes whatsoever."2 'Com. Dig. Ambassador B. 1 U. S. Vol. 2. p. 97. Story's edit. Tidd. Pract. 215. Vol. 1. p. 88. 2 Act April 30, 1790, s. 25. Ls. VOL. II. 1 Persons suing out pro It is further provided, "that in case any person or persons cess may be shall sue forth or prosecute any such writ or process, such person punished. mestic is in U.S. or persons, and all officers executing any such writ or process, shall be deemed violators of the laws of nations and disturbers of the public repose, and imprisoned not exceeding three years, and fined at the discretion of the court: provided nevertheless, Where do that no citizen or inhabitant of the United States, who shall have habitant of contracted debts prior to his entering into the service of any ambassador or other public minister, which debts shall be still due and unpaid, shall have, take, or receive any benefit of this act; nor shall any person be proceeded against by virtue of this act, Name must for having arrested or sued any other domestic servant of any ambassador, or other public minister, unless the name of such servant be first registered in the office of the secretary of state, and by such secretary transmitted to the marshal of the district in which congress shall reside, who shall upon receipt thereof, affix the same in some public place in his office, whereto all persons may resort and take copies without fee or reward." be register ed. How actcon strucd. Consul not privileged. Extent of privilege,&c. This act contains substantially, the provisions of the statute of 7 Ann, c. 12. ; on which it has been adjudged that a defendant claiming the benefit of the act, as domestic servant to a public minister, must be really and bona fide his servant at the time of the arrest: for though the process of law shall not take a bona fide servant out of the service of a public minister, yet, on the other hand, a public minister shall not take a person who is not bona fide his servant, out of the custody of the law, or screen him from the payment of his just debts.* A consul is not considered as a public minister, and consequently not privileged from arrest.5 The privilege extends to the servants of a public minister, being natives of the country where he resides, as well as to his 3 Same Act, s. 26. * See 2 Str. 797. 2 Ld. Raym. 1524. 1 Wils. 20.78. 1 Black. Rep. 48. 471. 3 Burr. Rep. 1676. 1731. 4 Burr. Rep. 2016, 17. 1 Tidd. 5 3 Maule & Selw. 284. Cas. Temp. Talb. 281. 3 Burr. Rep. 1481. Com. Dig. Tit. Ambassador B. 1 Taunt. 106. foreign servants;6 and not only to servants lying in his house, but also to actual servants lying out of his house." Nor is it necessary, to entitle them to the privilege, that their names should have been registered and transmitted as required by the act; though unless this has been done the attornies and officers, &c., cannot be proceeded against for arresting them. And it is not to be expected that every particular act of service should be specified; it is enough if an actual, bona fide service be proved: and if such service be sufficiently made out by affidavit, the court will not upon bare suspicion suppose it to have been merely colourable and collusive.9 But a person pursuing trade, or other profession or employment, although receiving wages, cannot be considered bona fide a domestic servant." The secretaries of ministers are protected as well as their servants.11 It is proper to remark that this court has no jurisdiction whatever in causes affecting ambassadors and consuls.12 Senators and representatives in congress.] By the constitution of the United States, senators and representatives1s "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 or coming from the same." There is no statute on this subject; and it has been held that the privilege is to be taken strictly, and to be allowed only while the party is attending congress, or is actually on his journey, going to or returning from the seat of government.14 6 3 Burr. Rep. 1676. 7 Str. 797. 3 Wils. 35. *1 Wils. 20. 1 Tidd. Pract. 216. 9 4 Burr. Rep. 1481. 10 Com. Dig. tit. Ambassadors B. Burr. Rep. 401. 11 Str. 797. Burr. Rep. 1478. 3 Term Rep. 79. 12 Cons. U. S. Art. 3. s. 2. Laws U. S. Story's edit. p. 57. s. 9. p. 59. s. 13. 13 Const. U. S. Art. 1. s. 6. |