Part 10

May 18, 1871, Z. L. White and H. J. Ramsdell, newspaper correspondents, having been taken into custody by order of the Senate, for refusing to disclose, on the requisition of a committee appointed to investigate the matter, the source whence a copy of the Treaty of Washington had been obtained which they had communicated for publication while under consideration in Executive Session, and Mr. White, whose case was first presented, on arraignment at the bar of the Senate persisting in his refusal, a resolution was thereupon offered for his commitment to the common jail until he should answer. Mr. Sumner immediately moved an amendment substituting for the common jail the custody of the Sergeant-at-Arms, remarking;--

In support of that amendment I will say that the only precedent we have in our history known to me for this case is that of Nugent,[105] and he was committed to the custody of the Sergeant-at-Arms. It appears from the newspapers of the time that there was a perpetual menace, as the excitement increased, that the custody should be changed to the common jail; but it does not appear that it was so changed. He continued for some two months in the custody of the Sergeant-at-Arms. We all know, also, that after the Impeachment Trial a witness was taken into custody; but it was simply the custody of the Sergeant-at-Arms of the House.[106]

There is one other precedent to which I ought to allude, and it will be for the Senate to say whether they will follow it. It is the resolution of the Senate in the spring of 1860, on the motion of Mr. Mason, chairman of the committee raised especially to persecute the supposed associates of John Brown, and taking one of them into custody, bringing him into this Chamber, propounding to him certain interrogatories which he refused to answer. Mr. Mason finally brought forward a resolution that he should be committed to the common jail.[107] That, Sir, is the precedent which it is now proposed to follow. The Senate will consider whether they will follow the lead of Mr. Mason, author of the Fugitive Slave Bill, Chairman of the Harper’s Ferry Investigating Committee, and afterward a Rebel, in committing a citizen to the common jail, or whether they will follow the better precedent of the Senate at a better day and under better auspices.

On this motion I ask for the yeas and nays.

The yeas and nays were ordered, with the result, for the amendment, Yeas 31, Nays 27.

A second resolution, containing a provision for the continuance of the Committee, with a view to holding the witness in custody after the close of the session until he should answer as required, which Mr. Sumner denounced as contrary to all parliamentary precedent, prevailed against a motion to strike out this part by Yeas 20, Nays 30.

Corresponding resolutions were subsequently adopted in the case of Mr. Ramsdell, who had likewise persisted in refusing to answer.

* * * * *

May 27th, on a resolution submitted by Mr. Wilson, of Massachusetts, for the discharge of these persons from custody “immediately upon the final adjournment of the session,” Mr. Sumner spoke as follows:--

MR. PRESIDENT,--This question is important, primarily, as it concerns the liberty of the citizen; but it is made important also by the attempt, to which we have just listened, to establish for the Senate a prerogative which on history and precedent does not belong to it.

Some days ago I took the ground, which I shall take to-day, that on the close of the session of the Senate any imprisonment founded on its order must cease. Of that conclusion, whether on history or law, I have not the least doubt. I have listened to the argument of the Senator from New York, [Mr. CONKLING,] and to his comment upon the authorities adduced. The answer, to my mind, is obvious. It will be found simply in stating one of those authorities and calling attention to its precise language. The Senator from Ohio [Mr. SHERMAN] has already presented to-day what I had the honor of quoting on the first day of this discussion, the authoritative words of May in his work on Parliamentary Law, and also the solemn judgment of Lord Denman, Chief-Justice of England. May says, speaking of prisoners committed by order of the House of Commons, that they

“are immediately released from their confinement on a prorogation, whether they have paid the fees or not. If they were held longer in custody, they would be discharged by the courts, upon a writ of _Habeas Corpus_.”[108]

This statement, coming as it does from the well-known Clerk of the House of Commons, as familiar with the usages of that body as any living man, is of itself authority. But he adduces the weighty words of Lord Denman in the most remarkable case of privilege that has ever occurred in English history, being that of Stockdale and Hansard, which, it is well known, was discussed day by day in Parliament, week by week in Westminster Hall. I have before me the opinions of all the judges on that case, but the words that are particularly pertinent now are quoted by May as follows:--

“However flagrant the contempt, the House of Commons can only commit till the close of the existing session,”--

Mark, Sir, if you please, how positive he is in his language,--

“can only commit till the close of the existing session. Their privilege to commit is not better known than this limitation of it. Though the party should deserve the severest penalties, yet, his offence being committed the day before a prorogation, if the House ordered his imprisonment but for a week, every court in Westminster Hall and every judge of all the courts would be bound to discharge him by _Habeas Corpus_.”[109]

These were the words of the Lord Chief-Justice of England in a most memorable case as late as 1839. This is no ancient authority, but something modern and of our day. It is not expressed in vague or uncertain terms, but in language clear and positive. It is as applicable to the Senate of the United States as to the House of Commons. It is applicable to every legislative body sitting under a constitutional government.

An attempt has been made to claim for the Senate prerogatives which belong to the House of Lords. How so? Is the Senate a House of Lords? Is it an hereditary body? Is it a perpetual body in the sense that the House of Lords is a perpetual body? We know that the House of Lords is in session the whole year round. We know, that, according to a rule of the Civil Law, “_Tres faciunt collegium_,”[110] three make a quorum in the House of Lords. So that the presence of three peers at any time, duly summoned to the chamber, constitutes a sufficient quorum for business. Therefore the House of Lords has in it an essential element enabling it to come together easily and to continue in perpetual session. It is in its character, in the elements of its privileges, clearly distinguishable from the Senate, as it is clearly distinguishable from the House of Commons. Such privileges as the Senate has are derived from the House of Commons rather than from the House of Lords, so far as they are derived from either of these bodies.

Another attempt has been made, by criticizing the word “prorogation,” to find a distinction between the two cases; but a note to May’s work on Parliamentary Law, which I now have in my hand, meets that criticism. After saying in the text that the prisoners committed by the House of Commons “are immediately released from their confinement on a prorogation,” the note says:--

“But this law never extended to an adjournment, even when it was in the nature of a prorogation.”[111]

Take, for instance, the adjournments which habitually occur in the British Parliament at the Christmas holidays, at the Easter holidays, at the Whitsuntide holidays. You saw in the papers, only the other day, that Mr. Gladstone gave notice that the House of Commons would adjourn over several days on account of the Whitsuntide holidays; but nobody supposes that that is in the nature of a “prorogation,” or that a committal by order of the House of Commons would expire on such an adjournment, as it would not expire on our adjournment for our Christmas holidays.

Therefore do the very precedents of the British Parliament answer completely the case put by the Senator from New York, who imagined a difficulty from occasional adjournments at the Christmas holidays. Sir, we are to look at this precisely as it is. The prorogation of the House of Commons is an adjournment without day, corresponding precisely to our adjournment without day. I believe in Massachusetts, down to this moment, when the Legislature has agreed upon the time of its adjournment, it gives notice to the Governor, who sends the Secretary of the Commonwealth to prorogue it, and the Legislature is declared to be prorogued,--thus following the language so familiar in England.

Then it is argued that this power to commit may be prolonged by a Committee to sit during the vacation. But how so? The Committee has no power to commit. The power to commit comes from the Senate. How does the sitting of the Committee in the vacation add to its powers? It has no such power while the Senate is in session. How can it have any such power when the Senate has closed its session? But the power to protract the imprisonment of a citizen must be kindred with that to imprison.

I dismiss the whole argument founded upon the prolongation of the Committee as entirely irrelevant. Prolong the Committee, if you please, till doomsday; you cannot by that in any way affect the liberty of the citizen. The citizen is imprisoned only by the order of the Senate, and the power to imprison or to detain expires with the session. Such, Sir, is the rule that we have borrowed from England. Nor am I alone in thus interpreting it. I cited, the other day, the authentic work of the late Judge Cushing on the Law and Practice of Legislative Assemblies. I will, with your permission, read again his statement, as follows:--

“According to the Parliamentary Law of England there is a difference between the Lords and Commons in this respect: the former being authorized, and the latter not, to imprison for a period beyond the session.”

That is the testimony of Judge Cushing, who had devoted his life to the study of this subject. He then goes on:--

“In this country the power to imprison is either incidental to or expressly conferred upon all our legislative assemblies; and in some of the States it is also regulated by express constitutional provision.”

Then he gives his conclusion:--

“Where it is not so regulated, it is understood that the imprisonment terminates with the session.”[112]

Mark, if you please, “terminates with the session.”

Here you have the authentic words of this special authority, interpreting the English Parliamentary Law, and also declaring our law. Who is there that can go behind these words? What Senator will set up his research or his conclusion against that of this exemplar? Who is there here that will venture to claim for the Senate a prerogative which this American authority disclaims for legislative bodies in our country, unless expressly sanctioned by Constitutional Law?

I have shown that this power to commit beyond the session does not exist in the House of Commons, from which we derive such prerogatives or privileges as we have. But the stream cannot rise higher than the fountain-head. How, then, if the power does not exist in the House of Commons, can you find it here? You cannot trace the present assumption to any authentic, legitimate fountain. If you attempt it, permit me to say you will fail, and the assumption will appear without authority, and therefore a usurpation. I so characterize it, feeling that I cannot be called in question when I use this strong language. If you undertake to detain these prisoners beyond the expiration of this session, you become usurpers, the Senate of the United States usurps power that does not belong to it; and, Sir, this is more flagrant, when it is considered that it usurps this power in order to wield it against the liberty of fellow-citizens.

When I state this conclusion, I feel that I stand on supports that cannot be shaken. I stand on English authorities sustained by American authorities. You cannot find any exception. That in itself is an authority. If you could mention an exception, I should put it aside as an accident or an abuse, and not as an authority. The rule is fixed and positive; and I now have no hesitation in declaring that it will be the duty of the judge, on a writ of _Habeas Corpus_, as soon as this Senate closes its session, to set these prisoners at liberty, unless the Senate has the good sense in advance to authorize their discharge. I do not doubt the power and the duty of the Court. I am sure that no judge worthy of a place on the bench will hesitate in this judgment. Should he, I would read to him the simple words of the Lord Chief-Justice of England on the very point:--

“If the House ordered his imprisonment but for a week, every court in Westminster Hall and every judge of all the courts would be bound to discharge him by _Habeas Corpus_.”[113]

There is no way of answering those words. They are as commanding on this occasion as if they were in the very text of our Constitution. When I say this, I do not speak vaguely; for I am sure that every student of this subject will admit that a judgment like that which I have adduced on a question of Parliamentary Law, and in favor of the rights of the subject, is of an authority in our country equal to the Constitution itself.

* * * * *

This brings me, Sir, to an important point which I had hoped not to be called to discuss, but which the argument of the Senator from New York seems to press upon the consideration of the Senate and of the country; and therefore I shall open it to your attention, even if I do not discuss it. It is this: that, whatever may be the power even in England by Parliamentary Law, it by no means follows that the Senate of the United States has that power.

What is the Senate? A body created by a written Constitution, enjoying certain powers described and defined in the Constitution itself. The Constitution says nothing about contempt or punishment for contempt. In order to obtain this power you must go into inference and deduction; you must infer it or imply it. In the case of impeachments the Senate becomes a judicial body, and it is reasonable to infer that it may have the power to compel the attendance of witnesses,--in short, the powers of a court. The Senate also, by express terms of the Constitution, has the power to expel a member. There again is an inquiry in its nature judicial; and should the Senate on such occasion examine witnesses and proceed as a court, it may be inferred that it is so authorized by the Constitution. There is also a third power which the Senate possesses, judicial in character: it is to determine the election of its members. Beyond these every power that the Senate undertakes to exercise on this subject is derived by inference. It does not stand on any text of the Constitution. It is a mere implication, and, being adverse to the rights of the citizen, it must be construed strictly.

Now I am not ready to say, I do not say, that the Senate has not the power to institute a proceeding like that now in question. I am very clear that it has not the power by compulsory process to compel witnesses to testify in aid of legislation, as was once attempted in what was known familiarly as the Harper’s Ferry Investigating Case. But I do not undertake to say that it may not institute a proceeding like that in which we are now engaged; yet I admit its legality with great hesitation and with sincere doubt. I doubt whether such an assumption can stand an argument in this Chamber; I doubt whether it can stand a discussion before a court of justice. How do you arrive at such a power? The Senator from Wisconsin [Mr. CARPENTER] said, the other day, the Senate, according to the arguments of certain Senators, has not the power of a justice of the peace. The Senator never spoke truer words: the Senate has not the power of a justice of the peace. A justice of the peace is a court with the powers of a court. The Senate of the United States is not a court, except in the cases to which I have already referred. It is a serious question whether it is a court in the proceeding which it has now seen fit to institute. Were it a court, then the argument of the Senator from Wisconsin might be applicable, and it might then claim the privileges of a court. It might proceed, if you please, to fine as well as to commit. The Senate in its discretion forbears to fine; it contents itself with imprisonment. But if it can imprison, why not fine? Why is not the whole catalogue of punishment open to its grasp?

I have reminded you, Sir, that our powers, whatever they may be, are under a written Constitution, and in this important respect clearly distinguishable from the powers of the House of Commons, which are the growth of tradition and immemorial usage. I am not the first person to take this ground. I find it judicially asserted in most authentic judgments, to which I beg to call the attention of the Senate.

I have in my hands the fourth volume of Moore’s Privy Council Cases, cases argued in the Privy Council of England, many of them being cases that have come up from the Colonies,--and here is one, being an appeal from the Supreme Court of the island of Newfoundland. I will read the marginal note:--

“The House of Assembly of the island of Newfoundland does not possess, as a legal incident, the power of arrest, with a view of adjudication on a contempt committed out of the House,--but only such powers as are reasonably necessary for the proper exercise of its functions and duties as a local Legislature.

“_Semble._--The House of Commons possess this power only by virtue of ancient usage and prescription, the _Lex et Consuetudo Parliamenti_.

“_Semble._--The Crown, by its prerogative, can create a Legislative Assembly in a settled colony, subordinate to Parliament, but with supreme power within the limits of the colony for the government of its inhabitants; but,

“_Quære._--Whether it can bestow upon it an authority, namely, that of committing for contempt, not incidental to it by law?”[114]

I will not take time in reading extracts from the opinion of the Court, which goes on the ground that the Legislature of the Colony is acting under a commission from the Crown in the nature of a Constitution, being a written text, and that it could not therefore claim for itself those vast, immense, unknown privileges and prerogatives which by long usage are recognized as belonging to the House of Commons.

But the question was presented at a later day in another case before the Privy Council, which came from the Supreme Court of Van Diemen’s Land. I cite now Moore’s Privy Council Cases, volume eleven. This case was decided in 1858. It is therefore a recent authority. The marginal note is as follows:--

“The _Lex et Consuetudo Parliamenti_ applies exclusively to the House of Lords and House of Commons in England, and is not conferred upon a Supreme Legislative Assembly of a colony or settlement by the introduction of the Common Law of England into the colony.

“No distinction in this respect exists between Colonial Legislative Councils and Assemblies whose power is derived by grant from the Crown or created under the authority of an Act of the Imperial Parliament.”[115]

You will see, Sir, that by this decision the powers of a Legislative Assembly created by a Charter are limited to the grants of the Charter, and that the mere creation of the legislative body does not carry with it the Law and Custom of Parliament. In the course of his opinion Lord Chief-Baron Pollock uses the following language. Alluding to the decision of the Privy Council in the Newfoundland case, he says:--

“They held that the power of the House of Commons in England was part of the _Lex et Consuetudo Parliamenti_; and the existence of that power in the Commons of Great Britain did not warrant the ascribing it to every Supreme Legislative Council or Assembly in the Colonies. We think we are bound by the decision of the case of Kielley _v._ Carson.… If the Legislative Council of Van Diemen’s Land cannot claim the power they have exercised on the occasion before us as inherently belonging to the supreme legislative authority which they undoubtedly possess, they cannot claim it under the statute as part of the Common Law of England (including the _Lex et Consuetudo Parliamenti_) transferred to the Colony by the 9th Geo. IV. c. 83, sect. 24. The _Lex et Consuetudo Parliamenti_ apply exclusively to the Lords and Commons of this country, and do not apply to the Supreme Legislature of a Colony by the introduction of the Common Law there.”[116]

Now the question is directly presented by these decisions, whether under the written text of the Constitution of the United States you can ingraft upon our institutions the Law and Custom of Parliament. So far as these cases are applicable, they decide in the negative; but I will not press them to that extent. I adduce them for a more moderate purpose,--simply to put the Senate on its guard against any assumption of power in this matter. I do not undertake to say to what extent the Senate may go; but with these authorities I warn it against proceeding on any doubtful practices. If there be any doubt, then do these authorities cry out to you to stop.

I have said, Sir, that our powers here are limited by the Constitution: I may add, also, and the Law in pursuance of the Constitution. And now I ask you to show me any text of the Constitution, and to show me any text of Law, which authorizes the detention of these witnesses by the Senate. The Senate, be it understood, is not a court. Certainly, for this purpose and on this occasion, it is not a court. Show me the law. Does it exist? If it exists, some learned Senator can point it out. But while Senators fail to point out any law sanctioning such a procedure, I point out an immortal text in the Constitution of the United States, borrowed from Magna Charta, which it is difficult to disobey:--

“No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, … nor be deprived of life, liberty, or property, without due process of law.”

“Without due process of law.” What is the meaning of that language? Judge Story[117] tells us, as follows:--

“Lord Coke[118] says that these latter words, _per legem terræ_, (by the law of the land,) mean _by due process of law_: that is, without due presentment or indictment, and being brought in to answer thereto by due process of the Common Law. So that this clause in effect affirms the right of trial according to the process and proceedings of the Common Law.”[119]

There, Sir, is a living text of the Constitution of the United States, binding upon this Senate. Where do you find any other text authorizing you to institute this proceeding? or if you institute the proceeding, must it not come within the limitations of this prohibition?