2. When its privileges have been violated, as in the case of William
Duane,[17] by a libel, or in the case of Nugent,[18] by obtaining and
divulging a treaty while still under seal of secrecy.
It will be observed that these two classes of cases are not sustained
by any text of the Constitution. If sustained at all, it must be by
that principle of universal jurisprudence, and also of natural law,
which gives to every body, whether natural or artificial, the right
to protect its own existence,--in other words, the great right of
self-defence. And I submit that no principle less solid can sustain
this exercise of power. It is not enough to say that such a power
would be _convenient_, highly convenient, or important. _It must be
absolutely essential to the self-preservation of the body_; and even
then, in the absence of any law, it must be open in our country to the
gravest doubts.
“Doubtless,” says Blackstone, “all arbitrary powers, well executed,
are _the most convenient_.”[19] But _mere convenience_ is not a proper
reason, under a free government, for the assumption of powers not
granted; and this is especially the case where the powers are arbitrary
and despotic, and touch the liberty of the citizen.
Now, if the present inquiry were in the House of Representatives, and
were directed against the President or the Secretary of War, on the
ground of negligence or malfeasance at an important moment, it would
be clearly within the jurisdiction of that body, which has the _sole_
power of impeachment; but it would not come within the jurisdiction
of the Senate, until it became the duty of the latter body to try the
impeachment instituted by the House.
But the present inquiry is neither preliminary to impeachment nor on
the trial of an impeachment. It has no such element. It is precisely
the same as if an inquiry should be instituted into the murder of Dr.
Burdell in New York, or into the burning of slaves in Alabama, or into
the banks of New York, or into the conduct of the Supreme Court of
Wisconsin in alleged obstructions of the Fugitive Slave Bill,--with
regard to all which the Senate has no judicial powers. And yet it has
judicial powers in all these cases, precisely to the same extent that
it has in the case of John Brown at Harper’s Ferry.
I know it is said that this power is necessary _in aid of legislation_.
I deny the necessity. _Convenient_, at times, it may be; but
_necessary_, never. We do not drag members of the Cabinet or the
President to testify before a committee, _in aid of legislation_; but
I say, without hesitation, they can claim no immunity which does not
belong equally to the humblest citizen. Mr. Hyatt and Mr. Sanborn
have rights as ample as if they were office-holders. Such a power as
this--which, without the sanction of law, and merely at the will of a
partisan majority, may be employed to ransack the most distant States,
and to drag citizens before the Senate all the way from Wisconsin or
from South Carolina--may be convenient, and to certain persons may seem
to be necessary. Throughout all time alleged necessity has been the
apology for wrong.
“So spake the Fiend, and with _necessity_,
The tyrant’s plea, excused his devilish deeds.”
Such, according to Milton, was the practice among the fallen angels.
Let me be understood as admitting the power of the Senate, where it is
essential to its own protection or the protection of its privileges,
but not where it is required merely in aid of legislation. The
difference is world-wide between what is required for _protection_ and
what is required merely for _aid_; and here I part from Senators with
whom I am proud on other matters to act. They hold that this great
power may be exercised, not merely for the _protection_ of the Senate,
but also for its _aid_ in framing a bill or in maturing any piece of
legislation. To aid a committee of this body merely in a legislative
purpose, a citizen, guilty of no crime, charged with no offence,
presumed to be innocent, honored and beloved in his neighborhood, may
be seized, handcuffed, kidnapped, and dragged away from home, hurried
across State lines, brought here as criminal, and then thrust into
jail. The mere statement of the case shows the dangerous absurdity
of such a claim. “Nephew,” said Algernon Sidney in prison, on the
night before his execution, “I value not my own life a chip; but what
concerns me is, that the _law_ which takes away my life may hang every
one of you, whenever it is thought convenient.” It was a dangerous
_law_ that aroused the indignation of the English patriot. But in the
present case there is not even a law,--nothing but an order made by a
fractional part of Congress.
There are Senators here who pretend to find in the Constitution
the right to carry slaves into the National Territories. That such
Senators should also find in the same Constitution the right to make a
slave of Mr. Hyatt or Mr. Sanborn, or of anybody else, merely to aid
legislation, is not astonishing; but I am at a loss how Senators who
love Freedom can find any such right in the Constitution.
I say nothing now of precedents from the British Parliament, for
they are all more or less inapplicable. We live under a written
Constitution, with certain specified powers; and all these are
restricted by the Tenth Amendment, declaring that “the powers not
delegated to the United States by the Constitution, nor prohibited by
it to the States, are reserved to the States respectively, or to the
people.” But even British precedents have found a critic at home, in
the late Chief Justice of England, Lord Denman, pronouncing judgment
in the great case of _Stockdale_ v. _Hansard_,[20]--and also in the
words of an elegant and authoritative historian, whose life has been
passed in one or the other of the two Houses of Parliament: I refer to
Lord Mahon, now Earl Stanhope, who, in his History of England, thus
remarks:--
“I may observe, in passing, that throughout the reign of George
the Second the privileges of the House of Commons flourished
in the rankest luxuriance.… So long as men in authority are
enabled to go beyond the law, on the plea of their own dignity
and power, _the_ ONLY _limit to their encroachments will be
that of the public endurance_.”[21]
Nothing can be more true than this warning. But Lord Brougham has
expressed himself in words yet stronger, and, if possible, still more
applicable to the present case.
“All rights,” says this consummate orator, “are now utterly
disregarded by the advocates of Privilege, excepting that of
exposing their own short-sighted impolicy and thoughtless
inconsistency. Nor would there be any safety for the people
under their guidance, if unhappily their powers of doing
mischief bore any proportion to their disregard of what is
politic and just.”[22]
With these observations I quit this question, anxious only that the
recent Usurpation of the Senate may not be drawn into a precedent
hereafter.
During Mr. Hyatt’s protracted imprisonment, Mr. Sumner visited
him constantly, and thus became familiar with the condition
of the jail. This led to the introduction of the following
resolution, March 13, 1860.
“_Resolved_, That the Committee on the District of Columbia
be directed to consider the expediency of doing something
to improve the condition of the common jail of the city of
Washington.”
Before the vote on the resolution was taken, Mr. Sumner remarked
that he had visited the jail, and found it neither more nor less
than a mere human sty; and since the Senate had undertaken to send a
fellow-creature there, he thought that the least it could do was to see
that something was done to improve its condition.