TWO SPEECHES, ON THE IMPRISONMENT OF THADDEUS HYATT FOR REFUSING TO
TESTIFY IN THE HARPER’S FERRY INVESTIGATION, IN THE SENATE, MARCH 12
AND JUNE 15, 1860.
On his return to the Senate, at the opening of Congress,
December 5, 1859, Mr. Sumner encountered the agitation arising
from the famous attempt of John Brown at Harper’s Ferry. Though
warned to enter slowly into the full responsibilities of his
position, he was constantly moved by incidents arising from
this agitation.
* * * * *
On the first day of the session, Mr. Mason, of Virginia, moved
the appointment of a committee “to inquire into the facts
attending the late invasion and seizure of the armory and
arsenal of the United States at Harper’s Ferry, in Virginia,
by a band of armed men,” and the long resolution concluded
with “power to send for persons and papers.” The Committee
was appointed, with Mr. Mason as chairman, and, in the course
of its duties, summoned John Brown, Jr., of Kansas, and F. B.
Sanborn and James Redpath, of Massachusetts, who severally
failed to appear. Thaddeus Hyatt, of New York, appeared, but
refused to testify. Thereupon Mr. Mason reported from his
committee the following resolution.
“Whereas Thaddeus Hyatt, appearing at the bar of the
Senate, in custody of the Sergeant-at-Arms, pursuant to
the resolution of the Senate of the 6th of March, instant,
was required, by order of the Senate then made, to answer
the following questions, under oath and in writing: ‘1st,
What excuse have you for not appearing before the select
committee of the Senate, in pursuance of the summons
served on you on the 24th day of January, 1860? 2d, Are
you now ready to appear before said committee, and answer
such proper questions as shall be put to you by said
committee?’--time to answer the same being given until
the 9th day of March following: And whereas, on the said
last-named day, the said Thaddeus Hyatt, again appearing,
in like custody, at the bar of the Senate, presented a
paper, accompanied by an affidavit, which he stated was
his answer to said questions; and it appearing, upon
examination thereof, that said Thaddeus Hyatt has assigned
no sufficient excuse in answer to the question first
aforesaid, and in answer to said second question has not
declared himself ready to appear and answer before said
committee of the Senate, as set forth in said question, and
has not purged himself of the contempt with which he stands
charged: Therefore,
“_Be it resolved_, That the said Thaddeus Hyatt be
committed by the Sergeant-at-Arms to the common jail of the
District of Columbia, to be kept in close custody until
he shall signify his willingness to answer the questions
propounded to him by the Senate; and for the commitment and
detention of the said Thaddeus Hyatt this resolution shall
be a sufficient warrant.
“_Resolved_, That, whenever the officer having the said
Thaddeus Hyatt in custody shall be informed by said Hyatt
that he is ready and willing to answer the questions
aforesaid, it shall be the duty of such officer to deliver
the said Thaddeus Hyatt over to the Sergeant-at-Arms of the
Senate, whose duty it shall be again to bring him before
the bar of the Senate, when so directed by the Senate.”
On the question upon its passage, March 12, 1860, Mr. Sumner
spoke as follows.
MR. PRESIDENT,--It is related in English parliamentary history, that,
on a certain occasion, when the House of Commons was about ordering
the commitment of a somewhat too famous witness to the custody of the
Sergeant-at-Arms, the Speaker interfered by volunteering to say, that
“the House ought to pause before they came to a decision upon a point
in which the liberty of the subject was so materially concerned.”[16]
That same question is now before us. We are to pass on the liberty of a
citizen.
Pardon me, if I say that such a question cannot at any time be trivial.
But it has an unaccustomed magnitude on this occasion, because the
case is novel in this body; so that what you now do, besides involving
the liberty of the gentleman at the bar, will establish a precedent,
which, in itself, will be a law for other cases hereafter.
Now, if it be conceded that the Senate is invested with all the
large powers claimed by the Houses of Parliament, then I cannot
doubt its power in the present case, although I might well question
the expediency of exercising it. But this is notoriously untrue. It
is well known that Parliament is above the constraint of a written
Constitution; and it has been more than once declared--much to the
indignation of our Revolutionary fathers--that it is “omnipotent” to
such extent that it can do anything it pleases, except make a man of a
woman, or a woman of a man. The Senate has no such large powers; it is
not “omnipotent,” but under the constraint of a written Constitution.
Instead of authority in all possible cases, it has authority only in
certain specific cases.
If the Senate can summon witnesses to its bar, and compel them to
testify, under pains and penalties, it must be by virtue of powers
delegated in the Constitution,--I do not say by express grant, but at
least by positive intendment. I say positive intendment; for nothing is
to be presumed against liberty.
There are certain cases in which the power is clear: first, and most
conspicuously, in the trial of impeachments; secondly, in determining
the elections, returns, and qualifications of its members; and,
thirdly, in punishing its members for disorderly behavior. All these
proceedings are judicial, as well as political, in character, and carry
with them, as a natural incident, the power to compel witnesses to
testify.
Beyond these three cases, which stand on the express words of the
Constitution, there are two other cases, quasi-judicial in character,
which, though not supported by express words of the Constitution, have
grown out of necessity and reason, amounting to positive intendment,
and are sanctioned by precedents. I refer, first, to the inquiry into
an alleged violation of the privileges of this body, as where a copy
of a treaty was furtively obtained and published; and, secondly, to
the inquiry into conduct of servants of the Senate, like that now
proceeding with regard to the Printer, on the motion of the Senator
from New York [Mr. KING]. If I were asked to indicate the principle
on which these two cases stood, I should say it was that just and
universal right of _self-defence_ inherent in every parliamentary body,
as in every court, and also in every individual, but which is limited
closely by the simple necessities of the case.
Such are the five cases in which this extraordinary power has been
heretofore exercised: the first three standing on the text of
the Constitution, and the other two on the right of self-defence
necessarily inherent in the Senate; all five sanctioned by precedents
of this body; all five judicial in character; all five judicial also
in purpose and intent; and all five agreeing in this final particular,
that they have no legislative purpose or intent. Beyond these cases
there is no precedent for the exercise by the Senate of the power in
question.
It is now proposed to add a new case, most clearly without any support
in the Constitution, without any support in the right of _self-defence_
inherent in the Senate, and without any support in the precedents of
the Senate.
A committee has been appointed to inquire into the facts attending
the late invasion and seizure of the armory and arsenal at Harper’s
Ferry by a band of armed men, and report whether the same was attended
by armed resistance to the authorities and public force of the United
States, and by the murder of any citizens of Virginia, or of any troops
sent there to protect public property; whether such invasion was made
under color of any organization intended to subvert the government
of any of the States of the Union; the character and extent of such
organization; _whether any citizens of the United States, not present,
were implicated therein or accessory thereto, by contributions of
money, arms, munitions, or otherwise_; the character and extent of the
military equipment in the hands or under the control of such armed
band; where, how, and when the same was obtained and transported to the
place invaded; also, to report what legislation, if any, is necessary
by the Government for the future preservation of the peace of the
country and the safety of public property; with power to send for
persons and papers.
And this committee, after several weeks of session, now invokes the
power of the Senate to compel the witness to testify. The chairman of
the committee, the Senator from Virginia [Mr. MASON], who calls for the
imprisonment of an American citizen, has shown no authority for such
an exercise of power in the Constitution, or in the admitted right of
self-defence, or in the precedents of the Senate. He cannot show any
such authority. It does not exist.
Surely, where the Constitution, and reason, and precedent, all three,
are silent, we might well hesitate to exercise a power so transcendent.
But I shall not stop here. I go further, and point out two specific
defects in the resolution of the Senate.
_First._ The inquiry which it institutes is clearly judicial in
character,--without, however, any judicial purpose, or looking to any
judicial end. The committee is essentially a Tribunal, with power of
denunciation, but without power of punishment,--sitting with closed
doors, having the secrecy of the Inquisition or the Star Chamber,
or, if you please, the Grand Jury,--with power to investigate facts
involving the guilt of absent persons, and to denounce fellow-citizens
as felons and traitors. If such a power is lodged anywhere outside of
judicial tribunals, it must be in the House of Representatives, as
the Grand Inquest of the Nation, with its power to impeach all civil
officers, from the President down; but it cannot be in the Senate.
Let me cite an illustration. The Constitution of Maryland provides
expressly that “the House of Delegates may inquire, on the oath of
witnesses, into all complaints, grievances, and offences, as the Grand
Inquest of the State, and may commit any person for any crime to the
public jail, there to remain until discharged by due course of law.”
But I deny that the Senate of that neighbor State can erect itself into
a Grand Inquest.
If the Senate of the United States have power to make the present
inquiry, then, on any occasion of alleged crime, of whatever nature,
whether of treason or murder or riot, it may rush to the assistance of
the grand juries of the District, or, still further, it may rush to the
assistance of the grand juries of Virginia; in short, it will be an
inquest of commanding character, and with far-reaching, all-pervading
process, supplementary and ancillary to the local inquest,--or, rather,
so transcendent in powers, that by its side the local inquest will be
dwarfed into insignificance. This cannot be proper or constitutional.
But perhaps I am especially sensitive on this point; for, as a citizen
of Massachusetts, I cannot forget that her Bill of Rights, originally
the work of John Adams, provides expressly that the legislative
department shall never exercise judicial powers, and the judicial
department shall never exercise legislative powers,--“to the end,” as
is solemnly declared, “it may be a government of laws, and not of men.”
But, assuming that the resolution is defective so far as it constitutes
an inquest into crime, it may be said that the witness should be
compelled to answer the other parts. Surely, the Senate will not resort
to any such refinement in order to imprison a citizen.
_Secondly._ But there is a broader objection still: that, whatever may
be the power of the Senate in judicial cases, it cannot compel the
testimony of a witness in a proceeding of which the declared purpose
is merely legislative. Officers of the Government communicate with
Congress and its committees simply by letter. They are not summoned
from distant posts, or even from their offices here. And I know not
why a distant citizen, charged with no offence, and in every right the
peer of any office-holder, should be treated with less consideration.
If information be desired from him for any legislative purpose, let
him communicate it in the way most convenient to himself, and most
consistent with those rights of the citizen which all are bound to
respect.
At all events, if this power is to be exercised, let it not be under a
simple resolution of the Senate, but by virtue of a general law, passed
by both Houses, and approved by the President, so that the citizen
shall be surrounded with certain safeguards.
Mr. President, I confidently submit that a power so entirely without
support, and also so obnoxious to criticism, at the same time that it
is so vast, is not to be carelessly exercised. You cannot send the
witness to prison without establishing a new precedent and commencing a
new class of cases. You will declare that the Senate, at any time,--not
merely in the performance of admitted judicial duties, but also in
the performance of mere legislative duties,--may drag a citizen from
the most distant village of the most distant State, and compel his
testimony, involving the guilt or innocence of absent persons, or, it
may be, of the witness himself. This is a fearful prerogative, and
permit me to say, that, in assuming it, you liken yourselves to the
Jesuits, at the period of their most hateful supremacy, when it was
said that their power was a sword whose handle was at Rome and whose
point was in the most distant places. You take into your hands a sword
whose handle will be in this Chamber, to be clutched by a mere partisan
majority, and whose point will be in every corner of the Republic.
If the present case were doubtful, which I do not admit, I feel that
I cannot go wrong, when I lean to the side of Liberty. But, even
admitting that you have the power, is this the occasion to use it?
Is it, upon the whole, expedient? Is the object to be accomplished
worth the sacrifice? It is well to have a giant’s strength, but it is
tyrannous to use it like a giant.
For myself, Sir, I confess a feeling of gratitude to the witness, who,
knowing nothing which he desires to conceal, and chiefly anxious that
the liberties of all may not suffer through him, feeble in body and
broken in health, hardly able to endure the fatigue of appearing at
your bar, now braves the prison which you menace, and thrusts his arm
as a bolt to arrest an unauthorized and arbitrary proceeding.
The resolutions were adopted March 12, 1860, and on the same
day Mr. Hyatt was committed to the common jail of Washington.
* * * * *
On the 15th of June, 1860, Mr. Mason, of Virginia, Chairman of
the Harper’s Ferry Investigating Committee, in submitting his
final report, further submitted the following order.
“_Ordered_, That Thaddeus Hyatt, a witness confined in
the jail of this city for refusal to appear and testify
before said committee, be discharged from custody, and
that a copy of this order be delivered to the jailer by
the Sergeant-at-Arms, as his warrant for discharging said
prisoner.”
On the question upon its passage, Mr. Sumner spoke as follows.
MR. PRESIDENT,--I welcome with pleasure the proposition for the
discharge of Mr. Hyatt from his long incarceration in the filthy
jail where he has been detained by the order of the Senate. But I am
unwilling that this act of justice should be done to a much injured
citizen, without for one moment exposing the injustice which he has
received at your hands.
The case, it seems to me, can be made as plain as a diagram.
We must not forget a fundamental difference between the powers of the
House of Representatives and the powers of the Senate. It is from the
former that the Senator from Virginia has drawn his precedents, and
here is his mistake.
To the House of Representatives expressly are given by the Constitution
_inquisitorial_ powers, while no such powers are given to the Senate.
This is contained in the words, “The House of Representatives
shall have the _sole_ power of impeachment.” Here, then, obviously,
is something delegated to the House, and not delegated to the
Senate,--namely, those inquiries in their nature preliminary to
impeachment, which may or may not end in impeachment; and since, by
the Constitution, every “civil officer” of the national government may
be impeached, the _inquisitorial_ powers of the House may be directed
against every “civil officer,” from the President down to the lowest on
the list.
This is an extensive power, but it is confined solely to the House.
Strictly speaking, the Senate has no general _inquisitorial_ powers. It
has, we know, _judicial powers_ in three cases under the Constitution:--